March 21, 2002

Legal Error Leads To Dismissal Of Poaching Case Against Jones

A legal error by the prosecution was the basis for the March 18 decision issued by Judge Gary Wallace to dismiss the case of the State of Missouri vs. Doug Jones.

Judge Wallace issued the judgment of dismissal when the State was unable to offer any case law to argue its failure to request judicial notice of specific Conservation Commission of Missouri regulations that govern hunters and fishers, but that are not printed in the state law code.

Rickey Roberts, the attorney for the defense, made a motion for dismissal prior to the start of the March 11 trial against the Clark County Sheriff. Jones was charged with three deer hunting violations for allegedly attempting to take wildlife with the aid of an artificial light, from a motor vehicle and from the roadway.

In his decision Wallace wrote: "The Court takes judicial notice of 3CSR 10-7.435 as pleaded by the State. The statutory section says that no wildlife shall be pursued, taken, killed, possessed or disposed of except as permitted by rules and regulations made by the Conservation Commission of Missouri. The code section pleaded says that deer may be pursued and taken in accordance with seasons, limits, methods and areas established annually by the commission. The court was Not asked to take judicial notice of any other provision of the Code of State Regulations nor were any other provisions of the code pleaded or offered into evidence by the State."

Wallace's decision was referring to the annual deer and fall turkey hunting pamphlet distributed each year by the Conservation Commission with the season regulations. This book does denote that deer may not be taken using an artificial light, nor may they be hunted from a motor vehicle or from a roadway. However, since the prosecution failed to ask the judge to take judicial notice of this regulation book and the prosecution failed to enter it into evidence, the judge could not consider these laws.

"Nothing in Section 252.040 RSMo (2002) and 3CSR 10-7.435 as pleaded makes the conduct alleged to have been committed by the defendant violations of the law or misdemeanors under Section 252.040 RSMo (2000)," Wallace's decision stated.

The decision continued; "It may have been violations of the rules and regulations of the Conservation Commission to attempt to take deer with the aid of an artificial light, with the aid of a motor vehicle or from a public roadway but such rules and regulations, if any, were not pleaded or offered into evidence by the State by invoking judicial notice, offering certified copies or otherwise. Had the State requested that the Court take judicial notice of such rules and regulations, if any, making the conduct of the defendant is alleged to have committed violations of the law, the Court would have been bound to do so without further proof."

The decision indicates that while the alleged actions of Jones are truly violations of law, the prosecution failed to accurately charge these violations. This would not have been an issue if the Conservation Commission regulations book that was referred to during the prosecution's presentation of the case, would have been either entered into evidence or been taken under judicial notice by the judge per request of the prosecution.

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