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Legally Speaking: Talking Turkey



The fall turkey hunting season just ended in Greenbrier County where a turkey of either sex could be harvested. From April 19-May 23, 2021, male “gobblers” may be hunted statewide. Spring gobbler hunting can be very exciting especially when calling in a large, long bearded gobbler. The loud gobbling these birds make can definitely raise goosebumps on your arms. Using special mouth or hand hen calls — some as basic as a wooden peg or “striker” and a piece of slate — gobblers can be drawn into shooting range.

However, similar to bowhunting and squirrel hunting when there is no rifle season occurring, turkey hunters are not required to wear blaze orange. Turkeys have excellent vision and can spot the smallest of movements or color. A large gobbler recently busted me as I made just the slightest of a turn behind a large red oak tree. To conceal themselves, turkey hunters often wear full camouflage, face coverings, and gloves in efforts to blend in with their wooded surroundings. This can also be very dangerous to the hunter.

In 2008, 16-year old Nicholas Caldwell, of St. Albans, went spring gobbler hunting in the woods near his house. Nicholas was a fine young man who had a bright future. Unbeknownst to Nicholas, 19-year old Andrew Hardin was in the woods that morning as well, armed with a shotgun. When Nicholas’ father could not reach him by calls or text messages, he went looking for his son. He found Nicholas dead with a shotgun wound to his head.

Investigators later discovered that Andrew Hardin had fired the deadly shot and had actually fired several times. Rather than stay and render assistance or call for help, Andrew fled the scene. Under Chapter 20 of West Virginia hunting laws, it was a misdemeanor offense to shoot and kill someone in that situation. Due to the egregiousness of the offense and extenuating circumstances as to why Hardin was in the woods, I prosecuted the case as a felony “wanton endangerment,” which essentially means performing an act with a firearm that creates substantial risk of serious bodily injury or death.

Hardin was convicted of that felony and became the first known person in West Virginia convicted of a felony under a hunting death circumstance.

Over the next year, Nicholas’ father and high school friends lobbied the West Virginia Division of Natural Resources and local legislators to increase the penalties for shooting someone while hunting and failing to render aid. A bill was introduced to the state legislature that specifically criminalized certain hunting situations. Upon discharging a bow or gun, and having reason to believe someone was struck, the new law made it a requirement to immediately investigate the extent of someone’s injuries. If the shooting caused serious bodily injury or death to another and the hunter failed to render aid, a felony offense occurred.

Raising the offense to a felony level has several implications such as barring firearm ownership and a possible prison sentence. In 2009, I watched as then-Governor Manchin signed the new bill into law in a packed gymnasium at St. Albans High School. Hundreds of Nicholas’ high school friends and family were in attendance. I still have a signing pen from that occasion.

This new law would later prove critical in an upcoming Lewis County hunting death case with facts that defy reality. More on that case next week.

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