Santos v. Dondero

LEMMON, J.,

pro

tem.

Appellant entered a plea of guilty in the Justice’s Court of Township 3, Lake County, to a charge of using artificial light in night hunting of game mammals in violation of section 1151 of the Fish and Game Code. By the judgment and sentence pronounced upon the plea, the justice’s court ordered that certain personal property, including a Ford coupe automobile, be forfeited to the fish and game commission, and the defendant herein, a game warden, in pursuance "thereof, took the automobile into his possession. An action in claim and delivery against the game warden, defendant herein, was thereupon instituted in the Superior Court of Lake County by appellant, to recover the possession of the automobile, or its value. From a judgment adverse to him, appellant prosecutes this appeal.

It appears that the appellant, in the commission of the offense charged against him, used a spotlight which was attached to the automobile in question. Section 1414 of the

[722]

Fish and Game Code provides in part: “The judge or justice before whom any person is tried for violation of any provision of this Code may, in his discretion, upon the conviction of the accused, order the forfeiture of any device or apparatus designed to be, and capable of being used to take birds, mammals or fish, and which was used in committing the offense charged.”

Appellant points out that the justice’s court complaint did not charge him with the use of the automobile in the commission of the offense, and deduces that the order of that court deprived him of property without due process of law. The right of the state to declare a forfeiture of property used in the commission of a criminal offense upon the conviction of such offense is too well settled to require a review of authorities. Upon the question as to whether the act upon which the forfeiture is predicated has been committed, the owner is entitled to due process of law, and, before his title can be extinguished, it must be judicially determined that the act or event giving rise to the forfeiture occurred.

(State

v.