88 Ark. 571 | Ark. | 1909
In the first ease Louis Fritz was indicted by the grand jury of Crittenden County and accused as follows: “The said Louis Fritz and ITenr)'- Smith on the 5th day of November, 1907, in the county of Crittenden, State aforesaid, did then and there unlawfully ship and export beyond the lines of this State certain game fish.”
He pleaded not guilty, and by agreement was tried before the judge, sitting as a jury, upon the following agreed statement of facts: “It is agreed, as the facts in this case, that defendant, within one year prior to the return of the indictment in this case, took certain game fish from that part of Horseshoe Lake, bounded on the east side by frl. southwest quarter of section twenty-five, and on the west side by frl. southeast quarter of section twenty-six, in township 4 north, range 7 east, and shipped the. same from the State of Arkansas to Memphis, Tennessee. That said tracts of land border upon said lake on opposite sides of the same. That Horseshoe Lake is an unnavigable inland lake, lying in Crittenden County, Arkansas, and that the grantors of the defendant owned the fee simple title to said lands prior to the passage'by the Legislature of Arkansas of any laws regulating or prohibiting the talcing of fish from the waters of this State, or any law prohibiting the shipping of the same from this State. That said lands were at the time they were acquired by the defendant, and are now, chiefly valuable for the fishing adjacent thereto.”
He was found guilty and his punishment was fixed at a fine of one hundred dollars, and plaintiff appealed.
The indictment is based upon section one of an act entitled “An act to amend section 3620 of Kirby’s Digest,” approved February 14, 1905, which is as follows:
“It shall be unlawful for any person, or persons, or corporation, to ship, export or carry beyond the lines of this State any deer, turkey, wild fowl, game fish, or game of any description, and any railroad compan}*-, express company, corporation, or individual who shall ship, export or carry, or receive for shipment, or export, or carry beyond the State line of Arkansas, any game fish, deer, turkey, or game of any kind, except rabbits, shall be deemed guilty of a misdemeanor, and upon conviction shall he fined in a sum not less than one hundred dollars, nor more than five hundred dollars, for each separate offense,” etc.
This statute has been sustained and held valid by this court. Organ v. State, 56 Ark. 267; State v. Mallory, 73 Ark. 236, 248, 249. See Geer v. Connecticut, 161 U. S. 519.
The evidence was sufficient to sustain the conviction in the first case.
In the second case Fritz was indicted and accused as follows:
“The said Louis Fritz, on the 20th day of November, 1907, in the county of Crittenden, State aforesaid, did then and there unlawfully place and erect in the waters of this State, then and there being in the county of Crittenden and State of Arkansas, a certain net for the purpose of taking fish from said waters.”
He was by agreement tried before the judge, sitting as a jury, upon an agreed statement of facts in writing as follows:
“The defendant, Louis Fritz, admits that he is guilty of the crime of unlawful fishing, as charged in the indictment, unless the following agreed facts exonerate him:
The State of Arkansas admits that the defendant is the owner in fee simple of the fractional southwest quarter of section twenty-five, township four north, range seven east, which borders on the east bank of Horseshoe Lake, and that he also owns in fee simple the fractional southeast quarter of section twenty-six, same township and range, which borders on the west bank of said lake, directly opposite the first described tract. That the fishing alleged to be unlawful in the indictment was done between the two tracts of land in said lake. Florseshoe Lake is an unnavigable inland lake wholly within said county of Crittenden, running in the shape of a horseshoe a distance of about seven miles, and different persons own different parts of the lands which border it on each side. That the defendant’s grantors acquired title to the above lands prior to the passage of any law prohibiting or regulating the catching of fish in this State. That the said 'lands are now, and were at the time when acquired by the defendant, principally valuable for the fishing adjacent thereto in said lake.”
He was found guilty, and his punishment was fixed at a fine of ten dollars; and he appealed.
The second -indictment was based upon the following statute:
“No person shall be allowed to place, erect, or cause to be placed or erected or maintained -in any of the waters of this State, or in front of the mouth of any stream, slough or bayou, any seine net, gill net, trammel net, set net, bag weir, bush drag, any fish trap or dam, or any other device or obstruction, or by any such means to take or catch any fish in the waters of this State. Provided the prohibition of this section shall not apply to waters wholly on -the premises belonging to such person or persons using such device or devices,” etc. Acts of 1907, page 912.
“Waters of this State,” as defined in an act of which the above statute is an amendment in part, are “all streams, lakes, ponds, sloughs, bayous, or other waters, wholly or in part, within this State.” Act of March 27, 1885, section 2.
Section 3601 of Kirby’s Digest makes a violation of these statutes a misdemeanor, punishable by fine of not less than five dollars nor more than $200.
The statute upon which the indictment in the second case was based was upheld and sustained as a good and valid statute in Lynch v. State, 69 Ark. 555, and by the reasoning of the court in State v. Mallory, 73 Ark. 236. The right and power of the State to regulate the catching of fish is generally conceded. Lawton v. Steele, 152 U. S. 133; Geer v. Connecticut, 161 U. S. 519.
It is contended, on behalf of appellant, that the statute did not prohibit him from placing, or erecting a net in Horseshoe Lake. It (lake) is “about seven miles long, and different persons own different -parts of the land which border on each side. It is not wholly upon the premises -of the appellant, and is a part of the “waters of the State,” as defined by the statute. The fish in the same were not in the possession or -control of any one, and constituted the private property of no one, and could not be lawfully caught except in the manner provided by the statute. Peters v. State, 96 Tenn. 682; Reynolds v. Commonwealth, 93 Pa. St. 458; Benscoter v. Long, 157 Pa. St. 208; State v. Blount, 85 Mo. 543.
The evidence was sufficient to sustain the conviction.
The judgments in the -two cases are affirmed.