The defendant was arrested upon a warrant charging him with a violation of section 185 of the Conservation Law, in that it was alleged that he had hunted, on or about the 10th day of January, 1916, without having procured the licenses required by law. A jury was called, before the justice of the peace issuing the warrant, and brought in a verdict of guilty, upon which judgment was pronounced. The defendant appealed to the County Court of St. Lawrence county, where the judgment was affirmed, and the case now comes here.
The information charged the defendant with the crime of having hunted without a license, on or about the 10th day of January, 1916, and the evidence fairly justified the jury in finding that the defendant had hunted on the 16th day of January, 1916, and at various times within the month of January, and we are of the opinion that there is no force in the appellant’s contention that the evidence failed to establish the offense on the day mentioned. The variance was unimportant and properly disregarded. It is enough that the crime was committed at some time prior to the making of the information, and that it could be so understood from its allegations. (People v. Jackson, 111 N. Y. 362, 369.)
We are not persuaded that the appellant has suggested any good reason for the reversal of this judgment, and yet *527the motion of the defendant’s counsel to discharge the defendant, at the opening of the case, should in our opinion, have been granted, though not because of the reasons stated. The information charges that the defendant committed the “ crime of misdemeanor by then and there hunting without a license contrary to and in violation of section 185 of the Conservation Law.” Hunting without a license is not in all cases a misdemeanor, and to properly charge a crime, under section 185 of the Conservation Law (Consol. Laws, chap. 65 [Laws of 1911, chap. 647], added by Laws of 1912, chap. 318, as amd. by Laws of 1913, chap. 508), it is necessary to allege and prove that the defendant, in addition to hunting without a license, is not the owner or lessee in possession of the farm lands on which the hunting was done, and the various matters contained in subdivision 8 of section 185 of the Conservation Law. In People v. Bradford (178 App. Div. 371) this court held that in an action for a penalty for a violation of this same section it was necessary to the statement of a cause of action that it be alleged that the defendant was not within the exceptions mentioned in the subdivision cited, upon the authority of Rowell v. Janvrin (151 N. Y. 60, 66). No different rule prevails in criminal actions; if an exception is stated in the enacting clause, as in the present instance, it will be necessary to negative it in order that the description, of the crime may in all respects correspond with the statute. (People v. Stedeker, 175 N. Y. 57, 67, and authorities there cited.) Section 185 of the Conservation Law provides that “ no person or persons shall at any time hunt, pursue or Mil with a gun, any wild animals,” etc., “ or engage in hunting or trapping except as herein provided, without first having procured a license so to do,” and in subdivision 8 of the same section it is provided that “ the owner or owners of farm land, and their immediate family or families occupying and cultivating the same, or the lessee or lessees thereof and their immediate family or families who are actually occupying and cultivating the same, shall have the right to hunt, kill and take game or trap fur bearing animals on the farm land of which he or they are the bona fide owners or lessees * * * without procuring such resident license.” Clearly, to establish a crime, it is necessary to show that the defendant is not- within the *528exceptions thus made a part of the enactment; he may have hunted without a license and still have been entirely free from any violation- of the statute. The information did not charge a crime, and the evidence before the jury does not supply the defect, as no effort was made to show that the defendant was not the owner or lessee of the premises where the alleged hunting is supposed to have been done.
The judgment of the County Court- and of the Justice’s Court should be reversed.
Sewell, J., concurred.
Order affirmed.