It's not a loophole. The fact is in order to be guilty of this offense he has to meet the test of 'knew or should have known' that he was hunting over bait. He (1) did not place the bait on the ground. He (2) didn't know the bait existed because the bait was never observed as anything other than a stump (if at all) - i.e. due to its appearance and distance from the blind, it would not have appeared as bait to any reasonable person such as a pile of corn would. And (3) I didn't tell him there was anything in the food plot.
He is not guilt of this offense because this is not a 'strict liability' offense. All you need to do to attain that understanding is read the code and supporting information.
Here's the applicable law that all the lower courts in the Phillips case read wrong, and the Alabama Supreme Court finally got it right:
Section 13A-2-3
Requirements for criminal liability in general and for offenses of strict liability and of mental culpability.
The minimum requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing. If that conduct is all that is required for commission of a particular offense, or if an offense or some material element thereof does not require a culpable mental state on the part of the actor, the offense is one of "strict liability." If a culpable mental state on the part of the actor is required with respect to any material element of an offense, the offense is one of "mental culpability."
(Acts 1977, No. 607, p. 812, �310.)
Section 13A-2-4
Construction of statutes with respect to culpability requirements.
(a) When a statute defining an offense prescribes as an element thereof a specified culpable mental state, such mental state is presumed to apply to every element of the offense unless the context thereof indicates to the contrary.
(b) Although no culpable mental state is expressly designated in a statute defining an offense, an appropriate culpable mental state may nevertheless be required for the commission of that offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such culpable mental state. A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, states a crime of mental culpability.
(c) If a statute provides that criminal negligence suffices to establish an element of an offense, that element also is established if a person acts recklessly, knowingly or intentionally. If recklessness suffices to establish an element, that element also is established if a person acts knowingly and intentionally. If acting knowingly suffices to establish an element, that element also is established if a person acts intentionally.
(Acts 1977, No. 607, p. 812, �315.)
[emphasis is mine]
The phrase in bold is the phrase that the lower courts overlooked in their interpretation of the law.
Link to Phillips case in the Court of Criminal Appeals Link to Phillips case in the Alabama Supreme Court Link to Court of Appeals decison on remand from the Alabama Supreme Court Because we conclude that a conviction under � 9-11-244 requires a showing that the defendant either knew or should have known that the area over which he was hunting was baited, the trial court erred in instructing the jury that Phillips could be found guilty even without proof that he baited the field or knew that the field was baited. Therefore, we remand this case for further proceedings consistent with this opinion.
[emphasis is mine]
Reckon how many hunters had to buy licenses just to pay the DCNR's legal fees to fight Archie on this one?
