Epitomized Opinion

Fenner was arrested on an affidavit of a deputy game protector before a J. P. in Pike County, Ohio. The affidavit charged that the accused shot a fox without first procuring a hunter’s license. The evidence disclosed that Fenner had lost several lambs and chickens, which had been carried off by foxes. Various other neighbors had also lost chickens in the same manner. Fenner finally discovered a fox den on an adjoining farm owned by Jones. Jones not only authorized Fenner to kill the foxes for him,, but also offered to pay Fenner for killing these destructive animals. Fenner and others dvnamited the den, and the accused killed two foxes. The foxes were left lying on Jones’ land. The accused was tried and convicted in the J. P. Court, and judgment was affirmed by the Court of Common Pleas. Fenner then prosecuted error to the Court of Appeals. In reversing the lower courts, this court held:

1. A hunter’s license, as required by Sec. 1431, is intended to apply only to one who hunts in the usual and ordinary acceptance of the meaning of hunting as contemplated by a hunter’s license, and which is ordinarily and usually understood to mean one who hunts for sport, pleasure or profit, and that the legislature did not intend that one should be required to purchase a hunter’s license before he could pursue and kill a fur-bearing animal that was injuring property or had become a nuisance.

2. Under Sec. 1308 of Ohio, a person can pursue and kill, at any time, except Sunday, fur-bearing animals which are injuring his property, or which have become a nuisance.

3. Even if by reason of Secs. 1431 and 1437, a person could kill fur-bearing animals because they are injuring his property or have become a nuisance only upon his land, the defendant is not guilty as charged because the evidence clearly shqwed that he was acting for the owner at his special instance and request.