Opinion
No. 27622.
December 10, 1928.
FISH. Where pond was fed entirely from overflow of creek and became practically dry in summer, defendants could take fish therefrom with seine; "overflow pond which goes dry in summer."
Where pond or lake was about one-half mile long, and was parallel with and was fed entirely by, overflow from creek, and frequently during summer lake or pond was practically dry, and at times wholly dry, the lake or pond in question was an "overflow pond which was dry in summer when cut off from regular stream," and defendants' taking fish out of pond with seine was not a violation of Laws 1926, chapter 178, section 9(b).
APPEAL from circuit court of Winston county; HON. JNO. F. ALLEN, Judge.
Z.A. Brantley, for appellants.
We submit that the affidavit in this case charges no offense. The appellants are indicted under Sec. 9, par. (b), Chap. 178, Laws of 1926, and the affidavit fails to name the kind of perch or pike taken or the kind of seine used, so as to advise the defendants the kind of fish taken and the kind of seine used, and whether or not the kind of fish taken or the kind of seine used are prohibited under the statute. See State v. Speaks, 132 Miss. 159, 96 So. 176; Dawsey v. State, 136 Miss. 18, 100 So. 526. The lake alleged to have been seined does not fall within the statute, as it is abundantly shown that the lake in question is cut off from the regular stream; that it goes dry in the summer; that it is fed by back or overflow waters during the high water time. Rufus Creekmore, Assistant Attorney-General, for the state.
A casual reading of the statute under which these defendants were tried, will show that the only exception named in the statute was negatived in the affidavit. Certain it is that perch and like are game fish, and certain it is that a siene is not a dip net. Counsel has not reserved to himself the right to object to the affidavit in this cause, there having been no objection made to it prior to appeal, either by demurrer, motion to quash, or otherwise. The most that could be said for the defendants is that the testimony of their witnesses raised a conflict in the evidence as to whether or not the lake went dry. Inasmuch as the determination of questions of fact is solely within the province of the jury, this court will not disturb the jury's finding on the facts.
Z.A. Brantley, in reply for appellant.
It is our understanding of the law that if the affidavit charges no crime it can be attacked at any time. The state charges in its affidavit that it is a body of water that is not cut off from the regular stream and doesn't go dry in the summer, and must show affirmatively and to the exclusion of every reasonable doubt that it is not cut off from the regular stream and doesn't go dry in the summer before the state can ask for conviction of the defendants. And we say to this court in all frankness and sincerity that the state has failed to do this.
This is an appeal from a conviction for unlawfully taking game fish out of a pond or lake with a seine in violation of subsection (b) of section 9, chapter 178, Laws of 1926, which provides:
"It shall be unlawful to take or kill game fish in any way except by hook and line or dip nets, except in private ponds or in barrow pits, or overflow ponds which go dry in summer, when same is cut off from the regular stream."
The evidence discloses, without real conflict, that the pond or lake from which the fish were taken is about one-half or three-quarters of a mile long, and is parallel with, and only a short distance from, a large creek; that it connects with said creek at each end, and is fed entirely by overflow from the creek at its upper connection therewith. When the water in the creek is low, it ceases to flow into the lake or pond, and frequently during the summer the lake is practically dry, with the exception of one or two holes, across which a man can step, and at times is wholly dry.
On this evidence, the lake or pond in question must be characterized as an overflow pond which goes dry in the summer when cut off from the regular stream.
The evidence there discloses that no crime was committed by the appellants, from which it follows that the court below should have granted the appellants' request for a directed verdict of not guilty.
Reversed, and judgment here for the appellants.