The facts are not disputed. The only findings excepted to by appellant are in reality conclusions of law. On November 11, 1923, during the season for hunting deer, the defendants went from Johnstown to the town of Ephratah, Fulton county, N. Y., for the purpose of hunting deer. When they arrived at their destination, guides whom they expected were not there. Other hunters gathered in the same vicinity, numbering, with the defendants, twenty-one. The defendants were asked to hunt with them. It was agreed that any deer obtained by any of them should be divided among all of the persons hunting. During the hunt that day a spike horn buck with horns more than three inches in length was taken. It was a deer that might be lawfully taken. None of these defendants was the taker of or killed the deer in question and none of them knew who killed the deer'or the names of the other hunters aside from the defendants. The deer was hog dressed in the woods and taken out to the public highway where it was skinned and cut up into portions by the taker, and divided among the hunters, each of the defendants receiving from the taker a portion of the venison, each piece weighing only a few pounds. It is conceded that eight pieces were given to the four defendants. Two of the defendants put the portions of venison received by them in their coat pockets and the other two put theirs into a game bag belonging to one of them. The defendants started for home in a private automobile owned by one of the defendants, with the portions of venison given to them by the taker. It is claimed that they were taking the venison with them for use and consumption in their respective homes and we may assume that this was so. As they were on their way they were stopped by a game protector, to whom, on request, they showed their pieces of venison. There was no evidence of sex attached thereto, since the taker of the deer had taken the head and hide containing the evidence of sex away with him. This action for penalties was brought for unlawfully transporting venison. It was stipulated upon the trial that, if a recovery were had, such recovery should be in the sum of $400.
The Conservation Law provides as follows:
“ Wild deer or venison lawfully taken may be possessed from October fifteenth to November twentieth, both inclusive. * * * If possession of deer is obtained for transportation on or after October fifteenth and before midnight of November sixteenth, it may lawfully remain in the possession of a common carrier the additional time necessary to deliver the same to its destination. * * *.” (Conservation Law, § 191, added by Laws of 1912, chap. 318, as amd. by Laws of 1920, chap. 520.)
“ The taker may transport, when accompanying the same, or he may transport by common carrier except parcel post when shipping permits are attached pursuant to the provisions of subdivision three, section one hundred and seventy-eight of this article, or possess for that purpose, one carcass of a deer or part thereof at any one time, provided in either case evidence of sex has not been removed from such carcass or part thereof. * * *.” (Conservation Law, § 190, subd. 6, as added by Laws of 1920, chap. 520.)
Under the general prohibition of said section 176, quoted above it is unlawful, “ except as permitted by this article,” to “ transport ” deer or “ have the same in possession.”. Under the permissive provision of section 191, above quoted, “ venison lawfully taken may be possessed from October fifteenth to November twentieth, both inclusive.” The venison in question was lawfully taken and was lawfully possessed by the defendants on November eleventh, if we are to judge from the standpoint of possession alone. We think, however, that all of the provisions of the Conservation Law, above quoted, must be read together. As so read, we find that possession of deer or venison while in course of transportation is specifically regulated. We must, therefore, give such reasonable interpretation to the right of lawful possession under section 191 of the law as will not nullify the provisions of the law as to transportation under sections 176, 191 and 190 of the law. In section 176, the general prohibition section, “ transport ” is mentioned separately from “ have the same in possession.” Therefore, the permissive sections as to transportation should be read separately from the permissive provisions as to lawful possession. They are mutually exclusive. The permissive provisions as to transportation
The judgment should be reversed upon the law and judgment for the sum of $400 should be directed in favor of the plaintiff and against the defendants, with costs.
All concur, except H. T. Kellogg and McCann, JJ., dissenting.
Judgment reversed on the law, and judgment for the sum of $400 directed in favor of the plaintiff and against the defendants, with costs. The court disapproves of so-called finding of fact number ten on the ground that it is not properly a finding of fact but a conclusion of law contrary to the views expressed in the opinion.