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No Interference with ‘Lawful’ Hunting

A Loudoun County Circuit Court dismisses a charge under Va. Code § 29.1-521.1  of interfering with lawful hunting against a man who discharged a gun on his own property adjacent to land where four hunters were hunting birds or other game, as several of the hunters did not have written permission to be on the adjacent land where they were hunting.

Hunters had complained that defendant had interfered with their hunting activities and his wife had interfered by banging on a pot, on her own property.

The evidence demonstrates that only one of four hunters hunting on the property did so with the owner’s express permission, granted by email. The property in question was posted with signs denoting “no trespassing” and “no hunting.”

Virginia Code § 18.2-134 provides that any person who goes on the lands of another, which have been posted in accordance with the provisions of § 18.2-134.1, to hunt, fish or trap except with the written consent of or in the presence of the owner or his agent, shall be guilty of a Class 1 misdemeanor.

In the instant case, with respect to three of the hunters on the property, no written permission was given by the owner for those persons to hunt on Feb. 8, 2012. While they have testified they were “guests” of the hunter who had permission, none had the express permission of the owner to go on the property.
Written permission by a property owner to hunt posted lands is a license. A license is personal between the licensor and the licensee and cannot be assigned. The person who had permission to go on the land had no authority to permit others to hunt on the property and therefore they were not lawfully hunting when defendant discharged his weapon into the ground near his home.

An element of the offense to be proved by the commonwealth beyond a reasonable doubt is that the hunting interfered with was lawful. The court cannot speculate as to whether the interference with any one member of the group of hunters would have taken place but for the presence of the hunting party and the attendant actions of the defendant that followed.

The court finds a reasonable doubt as to the guilt of the defendant. He will not be found guilty of impeding lawful hunting and the summons is dismissed.

Commonwealth v. Smith (Horne) Cr. No. 23929, Aug. 29, 2012; Loudoun County Cir.Ct. VLW 012-8-137, 3 pp.

VLW 012-8-137

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