Complaint for possessing certain lobsters in violation of the act of 1885, c. 275, § 3. The complaint is not made a part of the case, and, as no objection to it is pressed by the learned counsel for the defendant in his brief, the court may well assume that it is sufficient both in form and substance.
I. The court was requested to instruct the jury that, if the' lobsters possessed by the defendant were taken more than a marine league from the shores of Maine, he would not be guilty.
The request was properly denied. The statute prohibits the destruction of certain lobsters. State v. Bennett, 79 Maine, 55. It is immaterial where the lobsters were taken if the defendant possessed them within the jurisdiction of the court for the purpose of not liberating them alive, or for destroying them.
The eases cited by defendant are authorities against him. In State v. Beal, 75 Maine, 289, the indictment was for having trout, not alive, in possession during close time, with intent to sell the same in violation of the statute. Although the trout may have been lawfully taken from waters exempt from the operation of the statute, it was held that the possession of such trout with intent to sell them was illegal. And the court says: "The taking, the possession, the purpose, would all be lawful; the act of carrying, if in common phrase or in a legal sense it could *88be properly described as a transportation from place to place, would manifestly be wanting in that element of illegality, against which, it is clear, when all the provisions of the act are examined together, the penalties of that section were directed.”
So in Allen v. Young, 76 Maine, 80, it was held that transportation of deer in violation of the letter of the statute killed before close time was not illegal, inasmuch as the court says:
" We fail to see any motive for making the mere transportation of the hide or carcass of a deer from one place to another a crime when the deer has been lawfully killed, and is lawfully in the possession of the one who transports it.
" It has been repeatedly asserted in both ancient and modern times that judges may in some cases decide upon a statute even in direct contravention of its terms ; that they may depart from the letter in order to reach the spirit and intent of the act. Holmes v. Paris, 75 Maine, 559.”
The intent of the act in question is to protect lobsters and prevent their unreasonable destruction. The act charged is the very thing that the purpose of the act seeks to prevent.
II. The constitutionality of the act of 1885, c. 275, § 3, under which this prosecution is brought, is denied because penalties are imposed not proportioned to the offence.
The object and purpose of the act is to prevent the destruction of lobsters to such a degree as materially to diminish the supply and to preserve a necessary and valuable source of food. The penalty imposed is one dollar for each lobster unlawfully destroyed. Certainly that penalty is neither excessive nor severe.
That the unlawful destruction of many lobsters has created penalties aggregating a large sum signifies no more than a purpose to violate the statute regardless of the penalties affixed. It rather shows that the present forfeitures are insufficient to work obedience to the statute than that they are too severe. It can hardly be said that penalties which fail to prevent a violation of law by wholesale are disproportionate to the act prohibited. What good can come of a statute with penalties so mild as to allow its violation without loss to the offender? The purpose of a penal statute is to prevent conduct in violation of its terms; *89and the argument that from a repeated violation of its provisions the penalties aggregate large sums rather shows the insufficiency of the penalty imposed than the reverse. The penalties imposed for a violation of the statute in question cannot be said to be excessive or disproportionate to the offence created by it.
III. It is contended that the act of 1885, c. 258, giving magistrates jurisdiction of various offences under the fish and game laws is in violation of the constitution as infringing the right of trial by jury.
Article 1, section 6, of the constitution secures a "speedy, public and impartial trial . . by a jury of the vicinity and section 7 provides, " no person shall be held to answer for a capital or infamous crime, unless on presentment or indictment of a grand jury, except in cases of impeachment or in such cases of offences as are usually cognizable by a justice of the peace, or in cases arising in the army and navy or in the militia when in actual service in time of war or public danger.”
The statutes accord a trial by jury on appeal to the proper court from the decisions or judgments of all magistrates rendered in a case under the act in question. No more bail would be required of the accused on his appeal from a decision of the magistrate against him than would be if the magistrate could only hold him to bail for appearance before the appellate court. Moreover, in the former case he would be accorded the benefit of reasonable doubt, while in the latter he must be held for probable cause. This act is rather a benefit to the accused than a burden or disadvantage to him. He must be confronted with the witnesses against him, and discharged if a reasonable doubt of his guilt be not removed.
The offences of which the act gives magistrates jurisdiction are neither capital nor infamous crimes, and need not be considered by a grand jury. Prosecutions may as well be instituted before magistrates as by indictment, and the former method cannot be considered in violation of any provision of the constitution.-
IV. The objection that the magistrate before whom the case at bar was originally heard ivas then a resident and tax payer in *90the municipality to which a moiety of the penalty accrues has been already considered and decided by this court. State v. Severance, 2 N. Eng. R. 425 ; State v. Intoxicating Liquors, 54 Maine, 564; Fletcher v. Somerset R. R. Co. 74 Maine, 434.
V. No exceptions to the charge were pressed at the argument other than the questions already considered.
Exceptions overruled.
Peters, C. J., Walton, Virgin, Libbey and Poster, JJ., concurred.