In our opinion the submitted case presents but a single question for our determination.
The gravamen of the offense charged against defendant is that “ neither said doe or buck had attached thereto shipping permits issued by the Conservation Commission of the State of New York.”
The only question left open, under former decisions of this court, is whether or not the “ possession ” of the deer by defendant, without a shipping permit, constituted an offense.
In People v. Bisbee (173 App. Div. 127) we had before us a precisely similar question as to partridges shot in Maine and shipped to this State, except that the question of possession by the consignee was not involved. It was held that there was no illegality “ in shipping them to the State of New York until they [the birds] had arrived at their destination and a delivery made to the defendant.”
In thus holding we followed People v. Fargo (137 App. Div. 727) which discussed at some length both the State Game Laws and the so-called Lacey Act (31 U. S. Stat. at Large, 187, chap. 553).
Up to the point, therefore, of the delivery of the deer to *43the defendant we are constrained to hold that no illegal act is established as against him. It remains only to consider whether possession by him after delivery was unlawful. This must be determined solely by reference to the law of this State, as no Federal question is presented.
Section 191 of the Conservation Law provides in part as follows: “ § 191. Possession of wild deer or venison. Wild deer or venison lawfully taken may be possessed from October first to November twentieth, both inclusive. A person may possess such deer or venison from November twenty-first to February first, both inclusive, provided a license só to do shall first be obtained from the Commission.” (Consol. Laws, chap. 65 [Laws of 1911, chap. 647], § 191, added by Laws of 1912, chap. 318, as amd. by Laws of 1916, chap. 521.)
The remainder of the section is not relevant to the question now under consideration. It will be seen that the section covers the possession of deer during two seasons, one from October first to November twentieth, and the other from November twenty-first to February first. It is only as to the second season or period that it is necessary to procure a license in order that possession shall be lawful. As to the first season or period (which covers the acts charged as unlawful against defendant) the right of possession is absolute provided only that the deer shall have been “ lawfully taken,” as it is conceded that the deer in question were.
When the Legislature has explicitly provided as to one season that a permit must be obtained, and has made no similar provision as to the other season we see no escape from the conclusion that it was intended to allow possession from October first to November twentieth without the necessity of procuring a permit.
It follows that upon the agreed facts no unlawful act is established on the part of the defendant, and he is entitled to judgment accordingly, with costs.
Clarke, P. J., Dowling and Smith, JJ., concurred; Laughlin, • J., dissented.