(dissenting).
This case is before us on stipulated facts. Those facts are the sole basis of this decision. They warrant a verbatim rendering:
The defendant, possessing a valid license to take antlered deer at the time and in the area in which he was hunting, took up a position on a hillside at about 9:00 on the morning of November 7, 1982. After a wait of about half an hour, he heard a noise about 100 yards away and slightly to his left, and three deer came into view. The largest was a six or seven point buck, accompanied by a smaller doe and a still smaller antlerless deer. He watched the deer moving through the brush when, at a point about 90 yards in front of him, the head and shoulders of the buck came clearly into view, with the doe farther behind. The smallest deer was not in sight. Mr. Su-ter fired one shot at the buck, but both deer bounded away. He walked down *376the hillside to confirm the miss, and found, about 15 yards beyond the point where the buck had been, a small deer without antlers lying dead.
The result of this decision is to subject a hunter to a possible jail sentence for being a poor shot. I would reverse.
He was found guilty of “taking” an ant-lerless deer that he did not intend to “shoot at or kill,” and did not even see when he took aim at the buck.
I. Under the Commissioner’s order, “[ajnyone who shoots at or kills an antler-less deer must have an antlerless permit ...” (commonly referred to as a “doe permit”). The majority misconstrues this language. The Commissioner wishes to charge anyone who deliberately shoots at an antlerless deer and misses. Obviously, deliberate shooting at and killing an antler-less deer is a violation. Here, defendant did not point his gun at, he did not shoot at, an antlerless deer. He intended to, and did, point his gun at a buck, an act authorized by the license he had obtained. The intent would lie not in firing a gun, a legal act under these facts, but in firing at an antlerless deer. Defendant was doing nothing more than exercising his lawful privilege to hunt deer. Defendant is chargeable only with the intention of and attempt to lawfully exercise his privilege of hunting antlered deer, and since the result, the killing of an antlerless deer, was accidental and unforeseen, this conduct cannot be elevated to the status of criminal activity. The legislature has not yet imposed upon hunters the burden of striking every target.
II. It is settled law that penal provisions must be strictly construed, and before a person may be subject to criminal liability, it must be reasonably certain that the statute renders his conduct a criminal offense. State v. Kuluvar, 123 N.W.2d 699 (1963). The majority has admitted that the legislature must establish a “reasonably clear policy or standard of action” to guide the agency’s exercise of discretion. Anderson v. Commissioner of Highways, 267 Minn. 308, 311, 126 N.W.2d 778, 780 (1964). Under the facts of this case, the legislature’s delegation of authority to the Commissioner can hardly be established as “clear policy,” particularly since the Commissioner is not in a proper position to determine intent requirements.
I am further troubled that the burden of proof has been switched in prosecuting alleged fish and game law violators. In a prosecution, “the burden of establishing ... [a lawful taking] ... shall rest upon the defendant.” Minn.Stat. § 97.54 (1982). This contravenes the constitutional principal that a criminal defendant, which an alleged fish and game law violator is, is deemed innocent until proven guilty. Should not alleged fish and game law violators be given the same protection as an alleged thief or burglar?
III.The majority held that the legislature (not the Commissioner) may forbid the doing of an act and make its commission criminal without regard to the intention, knowledge, or motive of the doer. I agree. While it is not essential that the wrongdoer should intend to commit the crime to which his act amounts, “it it essential that he should intend to do the act which constitutes the crime.” State v. Kremer, 262 Minn. 190, 114 N.W.2d 88 (1962). The criminal act is the firing at an antlerless deer.
In Kremer, the defendant was charged with driving through a “red flashing” light in violation of a city ordinance. The Supreme Court reversed the defendant’s conviction. He had not intended the criminal act. The defendant (1) could not stop as his car brakes had failed to operate, (2) had experienced no prior brake problem, (3) had no knowledge that his brakes were defective. Here, the defendant Suter did not fire at the antlerless deer; he intended to and did fire at the buck. He did not intend the criminal act.
The majority relies upon the following rationale in Kremer for imposing absolute liability in this case:
[E]ven though a person does not criminally intend the harm caused by his acts, he “usually is in a position to prevent *377it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities”.
Id. at 192, 114 N.W.2d at 89 (emphasis added).
In this case, the antlerless deer was 15 feet behind the buck and out of defendant’s vision. Defendant shot at the buck and missed, a mere errant shot. His shot may have been deflected by a branch or twig. It is even possible to have passed through the buck without killing it, continued on and killed the antlerless deer. This was a strictly accidental killing of an antlerless deer. Nothing short of simply not firing could have prevented this accident.
IV. If there is absolute liability, as the majority holds, then nothing in the statute justifies the majority’s reading into the law an exception for “accidental discharge.” Any killing, whether accidental or not, would be technically an illegal taking. Indeed, the DNR interprets the statute that way. Hitting a deer with your car, let alone the accidental firing of a gun, is an illegal taking.
The majority, however, does not read the statute literally. They read into the statute an arbitrary line: those who accidentally fire their guns are not in violation; those who fire but accidentally miss the intended target are in violation.
If one is going to read into the statute a limitation, this particular one does not make sense; the facts of this case point out the inequity of the majority’s arbitrary line. Defendant saw and attempted to shoot a buck which he legally had the right to take. The path of a bullet in a forested area can be deflected by the smallest of twigs. There is no showing of anything but lawful intent. Why defendant with no unlawful intent should be prosecuted and some other hunter who with no unlawful intent accidentally fires and kills a deer should not be prosecuted is not explained by the majority.
A hunter who in all good faith attempts to hunt legally but through mistake or accident takes a deer should not be prosecuted without more. If he did more, such as transporting or processing the deer, then he has shown an intent worthy of prosecution. To criminally prosecute a hunter only for being a poor shot, however, is a travesty. I do not believe that defendant’s conduct is the kind of conduct which the legislature meant to proscribe.