Put the bullet in the right place and yessir, it'll take a deer. I started my hunting career with an old .38-40 and a '73 Winchester. OK, it's not an ideal deer round but a lot of deer have fallen to it. But you have to know the round's limitations. Fifty yards is about maximum for it. Back in the late '50's when I started hunting, the old guy I hunted with and studied under instilled upon me the necessity of getting close. If the deer was at 50 yards and there was any possibility of getting closer then the old man would insist I get that extra yard or two or five. He also taught me to track. With the .38-40 it was a virtual necessity.
Have been hutning with a buddy (now passed away) who would take out a Winchester 92 (rifle, not carbine) in 38-40 for deer hunting. I'd often carry a 4" S&W mod. 57 (.41mag) along with whatever deer rifle I was using.
BAsically, he was getting (checked on a chronograph) 1252fps/180gr.(a reload, easily safe for his rifle,using a cast lead bullet) and i was getting 1275fps/215gr.
Deer didn't seem to be able to tell the difference, and we couldn't tell the difference even when cleaning/butchering them. Basically a 4/10th inch hole through the deer. With his full length rifle, he certainly found it easier to hit them.
I'd not hesitate to use a 38-40 on one of the small Louisiana deer at close range (75yards or under...and 50yards would be better)
I have an old Marlin 1894 in 38-40.I wouldnt hesitate to use it on whitetail and would also adhere to a 50 yard max shot.Amazingly some people will say its too weak for deer,but say the 357 mag,44 spl or 45 acp is okay.
The most important thing of all is a correctly placed shot.
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