State v. Davis

Crows — shooting oí — private diversion — public — not witnessed by — Sabbath breaking — crime oí — does not constitute. The shooting of crows as a private diversion, not witnessed by the public generally, and in such a way as not to attract a crowd or to injure anyone, does not constitute the crime of Sabbath breaking. Note. — As to what amusements are prohibited by Sunday laws, see note in 30 L.R.A. (N.S.) 465.

Appeal from the District Court of Cass County, Honorable A. T. Qole, Judge. Defendant and companions were out hunting and shooting on Sunday. This act, as well as the formation of the party, was for private diversion only, and not for the amusement or entertainment of the public. Thei’e was nothing in this intended or amounting to “public sports.” Penal Code, § 9238, as amended by Senate Bill 137 being an act passed by the legislature of 1917. This statute prohibits only such “shooting” as constitutes a “public sport,” and does not prohibit “shooting” which is private and so indulged as a diversion. People v. Dennin, 35 Hun, 327; People v. Moses, 140 N. Y. 214, 35 N. E. 499. Playing ball on Sunday if exercised privately, and it is shown that the religious repose of the community is not interrupted, does not come within the statute. People v. Poole, 44 Misc. 118, 89 N. Y. Supp. 773; Moore v. Owen, 58 Misc. 332, 109 N. Y. Supp. 585; Re Allen, 34 Misc. 698, 70 N. Y. Supp. 1017; People ex rel. Bedell v. DeMott, 38 Misc. 171, 77 N. Y. Supp. 249; N. Y. Penal Code, § 265; People ex rel. Poole v. Hesterberg, 43 Misc. 510, 89 N. Y. Supp. 498; People v. Einn, 57 Misc. 659, 110 N. Y. Supp. 22. Any of the prohibited acts must be of a public nature, to constitute crime. People v. Ilemleb, 127 App. Div. 356, 111 N. Y. Supp. 690; William Pox Amusement Co. v. McClellan, 62 Misc. 100, 114 N. Y. Supp. 594; People v. Eoach, 61 Misc. 42, 114 N. Y. Supp. 742; Edwards v. McClellan, 118 N. Y. Supp. 181; Klinger v. Eyan, 91 Misc. 71, 153 N. Y. Supp. 937; People ex rel. Klinger v. Kand, 91 Misc. 276, 154 N. Y. Supp. 293. The general trend of the authorities is to hold that innocent, healthful amusements may not unnecessarily be prohibited, where the public in its religious observation of the Sabbath is not disturbed — private sports are not included. Ex parte Eoquemore, 60 Tex. Grim. Eep. 282, 32 L.E.A. (N.S.) 1186, 131 S. W. 1101; Ee Hull, 18 Idaho, 475, 30 L.E.A.(N.S.) 465, 110 Pac. 256; State v. Prather, 79 Kan. 513, 21 L.E.A. (N.S.) 23, 131 Am. St. Eep. 339, 100 Pac. 57; Ex parte Neet, 157 Mo. 527, 80 Am. St. Eep. 638, 57 S. W. 1025; State v. Chamberlain, 112 Minn. 52, 30 L.E.A.(N.S.) 335, 127 N. W. 444, 21 Ann. Cas. 679; State v. Penny, 42 Mont. 118, 31 L.E.A.(N.S.) 1155, 111 Pac. 727; Com. v. Alexander, 185 Mass. 551, 70 N. E. 1017; Cheeves v. State, 5 Oída. Grim. Eep. 361, 114 Pac. 1125; Eucker v. State, 67 Miss. 328, 7 So. 223. “All shooting, sporting, horse racing, gaming, or other public sports, upon the first day of the week, are prohibited.” Comp. Laws 1913, § 9238; State v. Eargo Bottling Works Co. 19 N. D. 396, 26'L.E.A. (N.S.) 872, 124 N. W. 387; 2 Lewis’s Sutherland, Stat. Constr. 2d ed. § 519; Hnited States v. Winn, 3 Sumn. 209, Eed. Cas. No. 16,740. “The rule of the common law, that penal statutes are to be strictly construed, has no application to this Code. All its provisions are to be construed according to the fair import of its terms, with a view to effect its object and promote justice.” Cal. Penal Code, § 4; People v. Fowler, 88 Cal. 136, 25 Pac. 1110; State v. McGillic, 25 N. D. 35, 141 N. W. 82; Eex v. Younger, 5 T. E. 449, 101 Eng. Eeprint, 253, 2 Eevised Eep. 638; Smith v. Sparrow, 4 Bing. 84, 130 Eng. Eeprint, 700, 12 J. B. Moore, 266, 2 Oar. & P. 544, 5 L. J. C. P. 80, 29 Eevised Eep. 514; Williams v. Paul, 6 Bing. 653, 130 Eng. Eeprint, 1433, 4 Moore & P. 532, 8 L. J. O. P. 280, 31 Eevised Eep. 512; Fennell v. Eidler, 5 Barn. & C. 406, 108 Eng. Eeprint, 151, 8 Dowl. & E. 204, 4 L. J. E. B. 207, 29 Revised Rep. 278; Tucker v. West, 29 Ark. 400; Scammon v. Chicago, 40 111. 149; Towle v. Larrabee, 26 Me. 469; Smith v. Wilcox, 24 N. T. 353, 82 Am. Dec. 302; Northrup v. Root, 14 Wend. 248; People v. Hoym, 20 How. Pr. 76; Brunnett v. Clark, Sheldon, 502; Albrecht v. State, 8 Tex. App. 313; Re Allen, 34 Misc. 698, 70 N. T. Supp. 1017; Cook’s Orim. Code, 1913 ed. § 2152; Nairn v. University of St. Andrews [1909] A. C. 147, 78 L. J. P. C. N. S. 54, 100 L. T. N. S. 96, 25 Times L. R. 160, 53 Sol. Jo. 161, [1909] S. C. 10, 46 Scot. L. R. 132; 111. Grim. Code, § 23, div. 1; Hurd’s Rev. Stat. (111.) ¶ 20, chap. 38, p. 753; 2 111. Anno. Stat. 1911, chap. 38, ¶ 3505; Hall v. State, 48 Wis. 688, 4 N. W. 1068; Pooler v. State, 97 Wis. 627, 73 N. W. 336; Utah Rev. Stat. 1898, § 4334, amended by Sess. Laws 1905, chap. 19, p. 16; State v. Hows, 31 Utah, 170, 87 Pac. 163; Ala. Code 1907, § 7814; Smith v. State, 50 Ala. 159. “It is thus seen that among the acts specifically prohibited on Sunday is fishing. That is absolutely prohibited on Sunday everywhere and under all circumstances. It may be done in a community where it does not offend the sensibilities of anyone — and in such manner as not to disturb the peace or interrupt the repose of religious liberty of the community, and yet the law is violated. It is quite unreasonable to suppose that the legislature meant that whenever any of these acts are charged as a violation of the law, an issue can be framed and tried as to their public, offensive, or disturbing character. The legislature has settled that matter by prohibiting them absolutely.” People v. Moses, 140 N. T. 216, 35 N. E. 499; Johnston v. Com. 22 Pa. 111.