On the flip side of this coin.....

Let's say someone is spotlighting on your property at night with a loaded gun.

Are they hunting at night?

Or,

Are they just looking around and happen to be trespassing?

A basic rule of review in criminal cases is that criminal statutes are to be strictly construed in favor of those persons sought to be subjected to their operation, i.e., defendants. Schenher v. State, 38 Ala. App. 573, 90 So.2d 234, cert. denied, 265 Ala. 700, 90 So.2d 238 (1956).

Penal statutes are to reach no further in meaning than their words. Fuller v. State, 257 Ala. 502, 60 So.2d 202 (1952).

One who commits an act which does not come within the words of a criminal statute, according to the general and popular understanding of those words, when they are not used technically, is not to be punished thereunder, merely because the act may contravene the policy of the statute. Fuller v. State, supra, citing Young's Case, 58 Ala. 358 (1877).

No person is to be made subject to penal statutes by implication and all doubts concerning their interpretation are to predominate in favor of the accused. Fuller v. State, supra.


A statute defining a crime must be strictly construed and "one cannot commit an offense under a statute except in the circumstances it specifies." Peinhardt v. State, 161 Ala. 70, 49 So. 831, 832 (1909), overruled on other grounds, Williams v. State, 177 Ala. 34, 58 So. 921, 923 (1912). The rules of statutory construction which this Court must follow were succinctly set out in Clements v. State, 370 So.2d 723, 725 (Ala. 1979), overruled on other grounds, Beck v. State, 396 So.2d 645 (Ala. 1980):


In Sheffield v. State, 708 So.2d 899 (Ala. Cr. App. 1997), this court addressed the implications of § 13A-1-6, Code of Alabama 1975, as that section pertains to the construction of criminal statutes:

"The focus in § 13A-1-6 on the 'fair import of [a penal statute's] terms' is the legislature's manifestation of its 'preference for the meaning of the statute over legislative intent as a criterion of interpretation.' 2A N. Singer, Sutherland Statutory Construction § 45.07 (5th ed. 1992). 'The reference to a "meaning of the statute" which is juxtaposed with and therefore distinct from legislative "intention," expresses concern for giving effect to the way in which the statute is understood by others than the members of the legislature itself.' Id. 'Inquiry begins not with conjecture about what [the legislature] would have liked to have said when it wrote the statute or with what [the legislature] would say today given the chance, but rather what [the legislature] indeed expressed in the statutory context.' Id."

708 So.2d at 905 (emphasis supplied).

That is as basic as this situation is.
You are constantly trying to over-complicate it!

An overbroad statute is one that is designed to punish conduct which the state may rightfully punish, but which includes within its sweep constitutionally protected conduct.  McDougal v. State, 324 Ark. 354, 359-360, 922 S.W.2d 323 (1996), citing 4 R. Rotunda & J. Novak, Treatise on Constitutional Law, § 20.8 (2d ed. 1992).   The Commission's rule, as amended, essentially shifts the burden to non-hunters who possess loaded or uncased firearms on city, county, state, or federally maintained roads or rights-of-way, to prove that he or she is not engaged in the prohibited act of road hunting.   When examining amended rule 18.04, we conclude that it may include within its sweep innocent and legitimate conduct.   For example, it is an affirmative defense to the charge of carrying a weapon that the person charged was carrying the weapon upon a journey.   See Ark.Code Ann. § 5-73-120(c)(4) (Supp.1995).   The amended rule is thus overbroad, and exceeds the Commission's authority granted under Amendment 35 to regulate the manner of taking game.

The appellees maintain, and the trial court agreed, that amended code 18.04 is unconstitutionally overbroad because its wording is so inclusive that it may affect the rights of non-hunters 1 who possess loaded or uncased firearms on city, county, state, or federally-maintained roads or rights-of-way.   In turn, the Commission urges that amended code 18.04 bears a rational relationship to the legitimate objective of suppressing illegal road hunting, an activity which, pursuant to Amendment 35 of the Arkansas Constitution, the Commission has the authority to regulate.   According to the Commission, the fact that some persons who have no intention of hunting may travel the highways during deer season with loaded or uncased firearms does not undermine the rule's legitimate sweep.

 We agree that the Commission, under Amendment 35, has plenary authority over the “control, management, restoration, conservation and regulation of birds, fish, game and wildlife resources of the State.”   Section 8 of Amendment 35 also grants the Commission “the exclusive power and authority to regulate the manner of taking game, to regulate seasons, and to fix penalties for violation of the regulations.”   However, while we have said that t he Commission has broad discretion in carrying out its powers, see Chaffin v. Ark. Game & Fish Comm'n, 296 Ark. 431, 757 S.W.2d 950 (1988), its discretion is not unfettered.   The Commission's power to regulate the manner of taking game certainly does not translate into a general power to regulate the general possession of all firearms on city, county, state, or federally maintained roads or rights-of-way.