This indictment is framed under the third and fourth sections of the act of May 25, 1900 (31 Stat. 187, *425C. 553), commonly known as the “Lacey Law.” Aside from the question of the validity of that statute or the exact purpose to be attained by it, it is to be observed, as a matter which lies on the surface, that the game that is there prohibited from being shipped from one state or territory to another is that, and only that, which has been killed in violation of the local law. Omitting matters of verbiage, the act in substance declares that it shall be unlawful for any one to deliver to any common carrier, or for any common carrier to transport from one state or territory to another, “the dead bodies or parts thereof of any wild animals or birds where such animals or birds have been killed in violation of the laws of the state, territory or district in which the same were killed.” As a necessary consequence of this, there is no violation of the act unless the game shipped or sought to be shipped has been so killed, and the fact that it was is of the essence of the offense, and must be averred and proved. While the federal courts will no doubt take notice of the statute laws of the different states with respect to the killing of game within their respective borders, this does not do away with the necessity for declaring, as well as-showing, that they have in fact been violated. If this be so, the first and second counts of the indictment are fatally defective. There is no averment whatever as to where the game there spoken of was killed, — whether in Pennsylvania or elsewhere; or that when and. where killed it was killed in violation of the local law. All that we have is the bald statement in the one count that the defendant had prepared for shipment by interstate commerce out of the state, certain • packages of dead game, without having them clearly marked with the name and address of the shipper and the nature of the contents, as required by the act: and in the other that he had concealed the game spoken of in trunks, satchels, etc., without having them so marked, with the intent to carry them out of the state into other states, in violation of the act of the general assembly of Pennsylvania approved June 4, 1897, and in evasion and violation of the act of congress in question. But there was no necessary vice in any of these acts by themselves. The game may have been innocently killed, and we must presume-that it was until it appears otherwise. For all that we know, it may have been killed in Canada, or some other equally irrelevant place, with which the facts charged are just as consistent as they are with-anything which is prohibited. It is true that these counts deal with alleged evasions of the law, which, by the terms of the statute, are punishable equally with direct violations of it. But that does not affect the question. Whether it be an evasion or a violation that is-charged, neither can exist, except the game which is the subject of it was killed in disregard of the local law, the prohibition of the statute being predicated wholely upon that circumstance.
Nor is the second count helped out in this regard by the reference ■ there found to the act of the general assembly of Pennsylvania entitled “An act for the better protection of game,” etc. (P. L. 1897, p. 123). All the use made of this reference is to declare that the acts of the defendant complained of were done with the intent to carry the game - out of the state, contrary to the provisions of that statute. But with this by itself the act of congress has no concern. It does not make it.-. *426unlawful to ship out of a state dead game which the laws of that state prohibit from being taken beyond its limits, but only such game as has been killed in violation of those laws. The distinction is important and material, and must be observed. Nor have I failed to note in this connection the last clause of the third section of the act, which provides that nothing therein shall prevent the transportation of any dead birds or animals killed in season, “the export of which is not prohibited by law in the state, territory or district in which the same are killed.” This, it is to be noted, is not prohibitive, but permissive. It is a proviso introduced out of extra caution to limit and explain the extent to which the preceding clause is to go, and cannot, therefore, be held.to enlarge it. Or, in other words, we cannot reach out by virtue of it, and say that, because the export of game which is not prohibited by the state law is thereby allowed, that which is prohibited is not; on the contrary, we must strictly adhere to what the statute in express terms forbids and punishes, and that, as we have seen, relates solely to game which has been unlawfully killed. This disposes of the first two counts, and we need concern ourselves no further with them.
The third count, however, remains. That charges the defendant, in substance, with having prepared for' shipment by interstate commerce, and having in his possession with intent to so ship, certain packages, one containing the body of a deer, and the other the bodies of 50 English pheasants, which had been killed in violation of the game laws of the state of Pennsylvania. It also speaks of a third package of 50 native pheasants, but, as it does not state where or how they were killed, under the views already expressed no charge can be predicated upon them. But the count goes on to declare that the packages referred to were prepared for shipment, and were intended to be shipped, by interstate commerce from Pennsylvania to New York, without having been plainly and clearly marked with the name and address of the shipper and the nature of the contents, so that the same could be readily ascertained by inspection of the outside, as required by the act of congress under discussion. Does this charge an indictable offense within the meaning of that law? Passing by the question whether it is a sufficient description of the offense supposed to be charged to aver that the game spoken of was killed in violation of the state law, without specifying just what were the provisions of that law, or in what respect it was violated, the important thing to observe is that all that is, in any event, charged is that the defendant prepared the packages described for shipment, or with intent to ship, by interstate commerce from Pennsylvania, where the game was killed, to New York, its intended destination, without having them marked as required by the statute. It is very clear that this does not bring the case within the law. It is the shipment or delivery for shipment which the act forbids and punishes; not the intent to do so, nor the preparation for it. Or, in other words, it is the complete, and not the inchoate, act which it undertakes to control; and we have no right to carry it a single step further. I do not mean that the game or packages must have been actually put into the vehicles by which the shipment is to be accomplished. A delivery to a common carrier for that purpose is made *427unlawful, as well as the actual transportation of it. And interstate commerce has clearly begun, so as to bring the case within the power of congress to regulate, when there has been such a delivery. But anything which stops short of this not only would seem to be beyond the authority of congress to> direct, but, what is more to our present purpose, does not fall within the terms of the act by which that body has spoken, which does not assume to punish the intent or the preparation, or in fact anything else than an actual delivery to the common carrier for intended interstate transportation.
It is contended, however, that evasions of the act are made punishable equally with direct violations of it, and that is undoubtedly the case. “For each evasion or violation of this act” it declares (section 4) “the shipper shall upon conviction pay a fine,” etc. It may be difficult, and it is not necessary, to define just what, in every instance, will amount to an evasion; but of this much we can be sure, and that is that it must be something contrived or done in connection with a shipment actually entered upon, and not one which is in mere contemplation. The statute itself suggests and seeks to guard against some which it assumes will be attempted by requiring in the section just quoted that “all packages containing such dead animals, birds or parts thereof, when shipped by interstate commerce, as provided in section one [three?] of this act, shall be plainly and clearly marked, so that the name and address of the shipper and the nature of the contents may be readily ascertained on inspection of the outside of such packages.” A delivery to a common carrier of packages not so marked would be an evasion of the act, and punishable by it, but the mere preparation of them, without more, is not; and that is all that we have here. The count declares that the defendant “did knowingly, willfully, and unlawfully prepare for shipment by interstate commerce, and did have in his possession with intent to ship by interstate commerce, certain packages [describing them], which said packages so prepared for shipment and intended to be shipped by interstate commerce from the state of Pennsylvania to the state of New York, were not then and there plainly and clearly marked,” etc. The whole subject of complaint is thus seen to be the preparation and the intent. Had the preparation gone on, and the intent which it manifested been carried out, we should have undoubtedly had an evasion, or an attempted evasion, of the act, if not a direct violation of it. But the most that can be made out of what is so stated is an intent, to evade, or the beginnings of an attempt, as we might say, of which the.preparation would be evidence, but would not in itself amount to an actual evasion, which is alone prohibited. It required some further step to be taken, by which, if carried out, the party would evade or escape the restrictive provisions of the act. "The packages, as it is expressly declared, were still in the possession of the defendant, and therefore under his control, and out of due regard for the law, and a final consideration of his duty in the premises, he might never have let them go; and yet, according to the contention of the government, although the final step had not been taken, he might be arrested and punished as though it had. This would cut off the locus poenitentise which is always supposed to be open until the forbidden act has been actually committed, and this no con*428sideration of the statute, or the purpose to be effected by it, requires us to do. Could we even go so far as to hold that an attempt to violate the act might be considered an evasion of it, we should still be met by the fact that here at most there was nothing but a preparation and an intent, and, according to all the authorities, to constitute an attempt there must be something more. I Whart. Cr. Law, § 181. It is to be observed that the first and second counts are open to the same criticism in this respect as the third, each of them merely charging the preparation or concealment of the game in packages for the purpose of shipping it, without more. It may be assigned as an additional and substantial reason for holding as before determined that they set out no case.
According to the views so expressed, I am therefore clearly of the opinion that no evasion or violation of the act is disclosed in the indictment, and that the demurrer must be sustained. The larger question whether the act is a legitimate exercise of the power given to congress by the constitution to- legislate with regard to interstate commerce, or is merely, as charged, a national game law, thinly disguised, which it had no authority to pass, although fully discussed at the argument, I do not feel called upon to decide. Neither do I the further question whether — Assuming the act to be valid — dead game carried in the hands, or as part of the personal luggage of the party who has killed it, must be regarded as falling within the terms of the act when transported under such conditions from state to state. These are interesting and important, but I prefer to dispose of the case upon others, which are much more obvious.
The demurrer is sustained, the indictment is set aside, and the defendant is discharged from his recognizance.