AGO 1954 No. 293 - Aug 2 1954
GAME ‑- ANIMALS ‑- HUNTING ‑- LEGAL RIGHT OF HUNTERS TO TAG ANIMALS SHOT BY OTHER HUNTERS ‑-CRIMES ‑- LARCENY ‑- TAGGING OF AN ANIMAL BAGGED BY ANOTHER.
1. A hunter who lawfully shoots a game animal acquires a vested legal right in such animal provided he continues to manifest an immediate intention to possess it by exercising actual physical possession and by tagging.
2. Where a second hunter shoots and tags a dying animal bagged by another while the first hunter is attempting to reduce it to possession, the second hunter is guilty of larceny if all other elements of the crime are present.
- - - - - - - - - - - - -
August 2, 1954
The Honorable W. R. Cole
National Bank of Commerce Building
Ellensburg, Washington Cite as: AGO 53-55 No. 293
You have requested our opinion on two questions substantially as follows:
I. Does a hunter who lawfully shoots a game animal, and the condition of the animal is such that it cannot escape and capture is imminent, acquire a vested legal right in the animal shot, even though he may be some distance away?
II. If the first question is answered in the affirmative, is a second individual who tags and claims the animal, even though he has fired a bullet in the dying animal bagged by another, guilty of a crime?
[[Orig. Op. Page 2]] Our answer to Question I is yes, provided the hunter continues to manifest an intention to possess the animal by tagging it.
Our answer to Question II is yes, provided all necessary elements of a crime are present.
I. Ownership in a wild animal vests when the animal is reduced to possession. Graves v. Dunlap, 87 Wash. 648, 152 Pac. 532, (1950).
In regard to the time when animals ferae naturae (wild animals) are reduced to possession, the land mark case of Pierson v. Post, Supreme Court of New York, 1805, 3 Caines 175, 2 Am. Dec. 264, stated the correct rule as follows:
"* * * actual bodily seizure is not indispensable to acquire right to or possession of, wild beasts; but that, on the contrary, the mortal wounding of such beasts, by one not abandoning his pursuit, may, with the utmost propriety, be deemed possession of him; since, thereby the pursuer manifests an unequivocal intention of appropriating the animal to his individual use, has deprived him of his natural liberty, and brought him within his certain control. So, also, encompassing and securing such animals with nets and toils, or otherwise intercepting them in such a manner as to deprive them of their natural liberty, and render escape impossible, may justly be deemed to give possession of them to those persons who, by their industry and labor, have used such means of apprehending them. * * *"
The correct rule, therefore, is that the mortal wounding of an animal, by one not abandoning his pursuit, so that capture is imminent, vests ownership at the time of inflicting the wound.
Compliance with RCW 77.32.020 would be necessary as evidence that one has not abandoned his pursuit. RCW 77.32.020 provides, in part, as follows:
[[Orig. Op. Page 3]]
"* * * Any person who kills any deer, elk, mountain goat, mountain sheep, or moose, shall immediately attach his own metal tag to the carcass of any such animal and properly seal the same. * * *"
II. Animals ferae naturae which have become property because they have been reduced to possession by persons other than the taker may, if of value, be subjects of larceny, whether the property therein is absolute, as where they have been killed, or qualified merely, as where they have been reclaimed or confined. 32 Am.Jur. 996 Larceny § 80.
RCW 9.54.010 provides that:
"Every person who, with intent to deprive or defraud the owner thereof‑-
"(1) Takes, leads, or drives away the property of another; or
"* * *
"(4) Having received any property by reason of a mistake, with knowledge of such mistake, secretes, withholds, or appropriates the same to his own use or to the use of any person other than the true owner or person entitled thereto; and
"(5) Every person who, knowing the same to have been so appropriated, brings into this state, or buys, sells, receives or aids in concealing or withholding any property wrongfully appropriated, whether within or outside of this state, in such manner as to constitute larceny under the provisions of this chapter; steals such property and shall be guilty of larceny."
The legislature has defined the crime of larceny with unusual clarity and exactness. It seems clear that an individual who tags and claims a game animal to which another person has vested legal interest, with intent to deprive or defraud the said person of his lawfully acquired property, is guilty of larceny [[Orig. Op. Page 4]] under the laws of the state of Washington.
It is to be remembered, however, that each case must be resolved upon its own particular facts, and if any of the elements essential in establishing the commission of a larceny are absent in a particular case, such as the "taking," or "intent," no crime of larceny has been committed.
We trust that the above analysis adequately answers your questions.
Very truly yours,
JOSEPH T. MIJICH
Assistant Attorney General