Crow v. State

Brian K. CROW v. STATE of Arkansas

CA CR 96-558                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
               Opinion delivered February 26, 1997


1.   Jurisdiction -- de novo trial -- circuit court had jurisdiction to order
     forfeiture of appellant's truck and shotgun. -- Where appellant was
     convicted in municipal court on a charge of night hunting and,
     on appeal to circuit court, was found guilty by a jury, the
     appellate court held that if any defect occurred at the
     municipal court level, it was remedied by the de novo trial in
     circuit court; the circuit court had jurisdiction to order
     forfeiture of appellant's truck and shotgun in the de novo
     trial.

2.   Jurisdiction -- municipal court -- when writ of prohibition may be sought.
     -- Appellant was not without a remedy to challenge the
     inherent power of a municipal court over a forfeiture
     proceeding; an accused who wishes to prevent a municipal court
     from exercising jurisdiction over a given matter should seek
     a writ of prohibition in circuit court.

3.   Game & fish -- Commission's authority to promulgate rules and regulations -
     - applied by courts. -- Under the provisions of Amendment 35 to
     the Arkansas Constitution, the Arkansas Game and Fish
     Commission was given full and complete authority to promulgate
     rules and regulations necessary for the conservation and
     preservation of all wildlife, including regulations setting
     penalties for violations; pursuant to this authority, the
     Commission promulgated Regulation 18.02, which makes it
     unlawful to hunt or kill any wildlife at night with or without
     the use of a light and imposes a range of possible penalties,
     including the confiscation of all equipment used in the
     violations; under the provisions of Amendment 35, these
     regulations have the effect of law, and courts judicially know
     and apply such rules and regulations promulgated by
     administrative agencies pursuant to law.

4.   Game & fish -- circuit court did not err in confiscating and forfeiting
     to State appellant's truck and shotgun. -- The appellate court held
     that the circuit court committed no error in confiscating and
     forfeiting to the State appellant's pickup truck and shotgun
     as a part of his sentence for night hunting pursuant to the
     regulations of the Arkansas Game and Fish Commission.


     Appeal from Pope Circuit Court; John S. Patterson, Judge;
affirmed.
     Robert E. Irwin, for appellant.
     Winston Bryant, Att'y Gen., by:  J. Brent Standridge, Asst.
Att'y Gen., for appellee.

     John F. Stroud, Jr., Judge.
     Brian K. Crow was convicted in municipal court on a charge of
night hunting.  In addition to a fine and costs, the municipal
court ordered his pickup truck and shotgun forfeited to the State
of Arkansas, to be disposed of in accordance with the law.  He
appealed the conviction to circuit court, where a jury found him
guilty.  He was sentenced to one year in jail with execution of
sentence suspended subject to certain conditions.  Just as had been
done in municipal court, the circuit judge ordered Mr. Crowþs
pickup truck and shotgun forfeited following the entry of the
verdict and judgment.  On appeal, Mr. Crow contends that the
circuit court was without jurisdiction to hear his case.  His
argument is that the municipal court lacked jurisdiction to order
a forfeiture and that on appeal the circuit court acquired only
such jurisdiction as the municipal court had.  We disagree and
affirm.        
     Night hunting and forfeiture of equipment used therein are
addressed by the Arkansas Game and Fish Commission Code. 
Regulation 18.02 provides in part:  
          It shall be unlawful to hunt or kill any wildlife at
     night with or without the use of a light of any type.
.  .  .  .

     PENALTY:   $500.00 TO $1,000.00

          In addition, a jail sentence of up to one year
     and/or suspension of hunting and fishing privileges may
     be imposed in accordance with Code 11.05, Revocation of
     Privileges.  Equipment used in such violations
     (including but not limited to killing devices and
     lights) may be confiscated by the court, forfeited to
     the State, and disposed of according to law.  

     Confiscation and seizure of equipment for night hunting and
other violations are addressed by Game and Fish Regulation        
01.00-D.  It states that any equipment, including but not limited
to guns, boats, lights, motors, or vehicles used in willful and
deliberate violation of 18.02 may be seized and disposed of
according to Commission policy.  Furthermore, upon conviction of
the defendant, the court having jurisdiction may order title to the
equipment forfeited to the Commission with its disposal to be
determined by the court for the benefit of the Commission.  See
Arkansas Game and Fish Regulation 01.00-D.  
     Although appellant argues that the circuit court acquired on
appeal only such jurisdiction as the municipal court had, he does
not question the circuit courtþs general residual jurisdiction to
order a forfeiture in an original proceeding in that court.  
Arkansas Code Annotated section 16-96-507 (1987) specifies that a
case appealed to circuit court shall be tried anew as if no
judgment had been rendered.  If any defect occurred in the present
case at the municipal court level, it was remedied by the de novo
trial in circuit court.  See Bussey v. State, 315 Ark. 292, 867 S.W.2d 433 (1993); Griffin v. State, 297 Ark. 208, 760 S.W.2d 852
(1988); Stephens v. State, 295 Ark. 541, 750 S.W.2d 52 (1988).  In
the present case, the circuit court had jurisdiction to order
forfeiture of the truck and shotgun in the de novo trial.  
     Because the de novo trial cured any defect at the municipal
court level, we need not decide whether the municipal court lacked
jurisdiction to order a forfeiture.  We note, however, that
appellant was not without a remedy to challenge the inherent power
of a municipal court over a forfeiture proceeding.  An accused who
wishes to prevent a municipal court from exercising jurisdiction
over a given matter should seek a writ of prohibition in circuit
court.  See State v. Webb, 323 Ark. 80, 913 S.W.2d 259 (1996);
Griffin v. State, 297 Ark.  208, 760 S.W.2d 852 (1988).   
     Appellant also contends that the trial court erred in not
proceeding with forfeiture as an in rem civil action independent of
any criminal charges.  We do not agree.  In  Dennis v. State, 26
Ark. App. 294, 764 S.W.2d 466 (1989), appellants convicted of the
offense of night hunting were sentenced to fifteen days in  the
county jail, fined $1000, had their hunting privileges suspended
for two years, and had a rifle and spotlight confiscated.  The
Dennis appellants argued that the court, in fixing their
punishment, clearly exceeded the statutory range of Ark. Code Ann.
 15-43-240 (1987) (since repealed), which limited the penalty for
a person convicted of night hunting to a fine of between $10 and
$200.  We addressed that argument as follows:
          [W]e point out that  15-43-240 was enacted before
     Amendment 35 to the Arkansas Constitution was adopted in
     1945.  Under the provisions of that amendment, the
     Arkansas Game and Fish Commission was given full and
     complete authority to promulgate rules and regulations
     necessary for the conservation and preservation of all
     wildlife, including regulations setting penalties for
     violations. . . .  

          Pursuant to this authority, the Commission
     promulgated Regulation 18.02, which provides that it is
     unlawful to hunt or kill any wildlife at night with or
     without the use of a light.  Possible penalties for its
     violation include a fine of from $250.00 to $1000.00, a
     jail  sentence of up to one year, suspension of hunting
     privileges of up to two years, and confiscation of all
     equipment used in the violations.  Under the provisions
     of Amendment 35, these regulations have the effect of
     law, and courts judicially know and apply such rules and
     regulations promulgated by administrative agencies
     pursuant to law.  See Johnson v. State, 6 Ark. App. 78,
     638 S.W.2d 686 (1986).  

Dennis v. State, 26 Ark. App. at 298.  
     Here, the circuit court committed no error in confiscating and
forfeiting to the State the pickup truck and shotgun of appellant
as a part of his sentence for night hunting pursuant to the
regulations of the Arkansas Game and Fish Commission.
     Affirmed.
     Cooper and Meads, JJ., agree.