Dissenting Opinion.
Jordan, J.— I can not concur in the majority opinion in this case so far as it in effect holds that the possession of the quail by the appellant, under the facts, was a penal offense in the meaning and spirit of the statute in controversy. The admitted facts conclusively show that the quail in question had come into the possession of the accused on the 30th day of December, 1899, the same being a day *618within the open season when it was lawful to kill or take quails and reduce the same to possession. On that date, it seems, it was placed by appellant in his refrigerator and there remained until the 5 th day of the following February. The statute, as enacted, and whereby the legislature has declared the period which shall constitute the close season, in respect to killing or taking of such game, reads as follows : “Whoever shoots or destroys, or pursues for the purpose of shooting or destroying, or has in his possession any quails or pheasants during the period from the first day of January of any year to the tenth day of November of the same year, or shoots or kills any wild turkey between the first day of February and the first day of November of any year, shall be fined in the sum of $2 for each quail, wild turkey or pheasant so killed, and the sum of $1 for each quail or pheasant so pursued, or had in his possession.” §2209 Burns 1894.
This act, under its provisions, neither assumes nor professes to deal with or to have any reference or application to quails which were lawfully taken and reduced to possession by the taker during the open season. From my view of the law it would certainly appear to be a very harsh and unreasonable interpretation of this statute to hold that the legislature thereby intended to make the possession of quail, when such possession was lawful at the taking, a criminal offense by the mere lapse of time, or, in other words, that a continuation of such possession over into the close season should constitute a crime. In the absence of an express declaration to that effect, can it be asserted that the legislature intended, by this statute, not only to make the possession of quails killed or taken during the forbidden time an unlawful act, but, under its provisions, it was intended to go further, and trace, if necessary to constitute the offense, the possession of such game back into the open season, and forbid, under a penalty, a continuation of such possession over into the close season ? Before a judgment of a court in *619a criminal cause which would lead to such an unjust and unreasonable result is rendered, the language of the statute involved should be clear and mandatory and free from all reasonable doubt in respect to its meaning. Before the statute in question is enforced against the accused, under the facts in the case, the court ought to be fully satisfied that the act which the statute imputes to him is made unlawful, not only by the letter, but that it also falls within the spirit and intent of the law. Eor the principle is elementary that a thing within the intent of the statute is as much within it as if it were within the letter, and a matter, although within the letter of the law, is not within its provisions if contrary to the intent and spirit of the act. Conn v. Board, etc., 151 Ind. 517.
It is a well settled canon in respect to the construction of laws that where the language of the legislature is fairly susceptible of two meanings, the one which excludes or prevents consequences which are mischievous and unjust will be preferred and adopted by the court. In fact, statutes are not always, nor should they be, literally construed. Donnell v. State, 2 Ind. 658; Hooper v. State, 56 Ind. 153. The rule is well settled that in the construction or interpretation of a criminal statute all reasonable doubt which may arise in respect to its meaning must be resolved in favor of the person accused thereunder.
I recognize the rule of the law which affirms that the title or right to all animals, birds, fowls, or fish, ferae naturae is held by the State, the sovereign power, in trust for the benefit of all the people of the State, and that the latter, by its legislature, may impose such conditions, regulations, or restrictions as may be deemed proper or necessary in respect to the taking or having in possession any of such animals, birds, fowls, or fish, and that he who acquires the ownership or possession, under such imposed conditions, regulations, or restrictions, will be held to be subject thereto, and his title or right of possession will be controlled thereby.
*620But that is not the question involved in this appeal. It may be conceded that the State has the power to make the possession of quails in the close season unlawful, although such possession was acquired in the open season, and continued over into the close period. But this concession does not solve the question involved in this appeal, which is: Can it in reason be asserted, under the rule governing the interpretation of statutes, that the legislature, under the statute in dispute, intended, under the circumstances, to make such possession unlawful? That this question must be answered in the negative to me appears to be quite evident and beyond successful controversy. Had the legislature intended by this law to make it unlawful for a person to have in his possession quails taken during the open season, considering the importance of the question, it may be assumed that the legislative will to this effect would have been expressed or declared in clear and positive language.
A statute of the state of Maine prohibited, under penalty, the hunting or killing of deer between the 1st of January and the 1st of October. By this act it was also made an offense for any person to carry or transport the carcass or hide of any deer during the prescribed close period. One Young was prosecuted under the statute for transporting on February 17, 1883, the carcasses of two deer. It was shown by the evidence that he killed ‘and came into the possession of one of the animals in the state of Maine on the 30th day of the previous December, and of the other animal on the 31st day of the same month; that the carcasses of the deer were taken by him from the place where he had killed them in that state to his own home, and there remained until February 17th following, and then transported by him to the railroad station to be shipped by rail to Boston, Massachusetts, for the purpose of sale. The case was appealed to the supreme court of Maine. See Allen v. Young, 76 Me. 80. In deciding the question as therein involved, which was identical with the one in issue in the *621case at bar, the court said: “The question is whether, if deer are killed during the time when it is lawful to do so, it is a crime to carry or transport the hides or carcasses from place to place in this state during the time when it is unlawful to kill them. We think it is not. True, the transportation at such a time seems to be within the letter of the law; but we think such could not have been the intention of the legislature. We can see no possible motive for making such, transportation a crime. We can readily see that it would be in furtherance of the purposes of the act to make such transportation prima facie eyidence of guilt, and thus throw the burden of proof upon the party to show his innocence, as is done in section five with respect to possession; but 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. Certainly one may reasonably doubt whether such could have been the intention of the legislature; and the act being a penal one, a reasonable doubt is sufficient to make it the duty of the court to adopt the more lenient interpretation, and construe the term, ‘such animal’ as meaning an animal unlawfully killed, as was done in construing a similar statute in Com. v. Hall, 128 Mass. 410.”
In the case of the State v. McGuire, 24 Ore. 366, 33 Pac. 666, 21 L. R. A. 478, the defendant was prosecuted, under a statute of that state, for having in his possession certain fish during the period when the law made it unlawful for any person to receive or have any such fish in his possession. The defendant offered to prove,- as a defense to the prosecution, that the fish in controversy had been lawfully caught in the open season and belonged to fish dealers in the city of Portland and had been by such dealers placed in his possession only for the purpose of cold storage. It was held in that case that by reason of the fact that the fish were caught in the open season, the possession thereof thereafter *622during the prohibited period would not render the possession unlawful within the intent of the statute. The cases pro and con in respect to the law upon the question involved are fully collected and reviewed by the court in that appeal. The trial court, it seems, in construing the statute involved in that prosecution, held that the possession of the fish by the defendant during the close season constituted a crime, regardless of the fact as to when or where they were caught or taken. The supreme court, in considering the construction placed upon the statute by the lower court said: “The effect of this construction is to declare that, in order to protect the salmon in this state, it was thé intention of the statute to punish the offering for sale, or the having in possession, of salmon of the varieties specified, during the prohibited seasons, no matter whether they were lawfully caught within or without the state; in a word, that it was the intention of the legislature to punish the mere possession of salmon which had been lawfully caught or taken. It ought to require plain, unambiguous, and mandatory language to justify any court in declaring fish or game lawfully caught or taken to be the subj ect of an offense, by the simple possession of it. A construction leading to such injustice ought to be avoided if if can be reasonably done. Salmon fish is an article of food, and the law interdicting the catching of them at certain seasons is not because they are unfit for use, or unwholesome, but to protect and preserve such fish in this state.”
In the case of People v. O’Neil, 71 Mich. 325, 39 N. W. 1, the defendant was accused of having in his possession, in violation of a statute of the state of Michigan, a number of quail in the month of April, 1888, this latter month, under the law, being within the close season in that state. The evidence established that he had purchased these birds in the state of Missouri and had received them into his possession in the month of December, 1887, this latter month being within the open season in' the state of Michigan. The su*623preme court in that appeal held that under the facts the possession was not unlawful within the spirit or meaning of the criminal statute involved. Champlin, J., speaking as the organ of the court, in respect to the interpretation of the law, said: “A construction of a statute which leads to such harsh consequences, and punishes with severe penalties acts which are confessedly innocent in themselves, must not only be unambiguous, but mandatory; and- the act done must be not only within the letter, but within the spirit, of the law to gain my assent to its enforcement. Our statute requires no such strict or harsh construction. The articles interdicted are articles of food, and the interdiction is not because such food is unwholesome, and therefore detrimental to the public health, but the whole end and object of the legislation is to protect and preserve game in the state of Michigan.” That eminent and learned jurist, Judge Campbell, in concurring in the opinion of his associates, said: “I do so for the further additional reason that I do not think it would be competent for our legislature to punish the possession of game which was lawfully captured or killed. Having become lawful private property, it can not be destroyed or confiscated, unless it becomes unfit for use, any more than other property can be destroyed. I do not think the cases to the contrary are reasonable or sound.”
Commonwealth v. Wilkinson, 139 Pa. St. 298, 304, 21 Atl. 14; James v. Wood, 82 Me. 173, 19 Atl. 160, 8 L. R. A. 448; Commonwealth v. Hall, 128 Mass. 410, also sustain the doctrine asserted and adhered to, in the cases from which I have quoted. It can not be said that there is any real merit in one of the reasons given for the construction placed upon the statute by the majority opinion, which reason is to the effect that such a construction is necessary in order to prevent an evasion of the law, or, in other words, to enable the State more successfully to secure convictions thereunder. That is a question more properly for the consideration of the legislature.
*624If it liad been intended by tbe lawmaking power to make tlie mere possession of quail during the prohibited season a criminal offense, without any regard to where, when, or how lawfully such game had been killed or taken, surely language could and would have been employed clearly to express such intention.
Under the holding in the prevailing opinion, the hunter who kills any quail on December 31st, the end of the open season, intending to eat them at his New Year’s dinner, will discover that he is in a position of peril. He will be compelled either to eat the birds on the day he killed them, cremate them, or in some other manner destroy them, or, at least, he must in some way rid himself of their possession ere the clock strikes the hour of midnight, otherwise if he continues the possession of the birds over until the beginning of the next day he will be a violator of the law and liable to be subjected to its penalty.
In many of the cases cited in the majority opinion, the legislature appears, in the particular statute, by some provision to have emphasized its intention to make the law apply to and include game, without regard to the question as to when, where, or how the same had been killed, taken, or received.
Without further commenting upon the question, I am convinced that the conviction of the appellant in the trial court, under the facts, was wrong, and that the judgment ought to be reversed.