145 S.W. 594 | Tex. Crim. App. | 1912
In this ease appellant was-prosecuted under an information charging him with “unlawfully seining and dragging a seine within the prohibited waters of the state of Texas,” in that defendant did unlawfully seine and drag a seine in the waters of Corpus Christi Bay and in and within one mile of either side of the channel and pass leading from the waters of Corpus Christi Bay to the Gulf of Mexico, known as Corpus Christi Pass.
W. E. Everhart testified for the state; “I went around on Mustang Island on the •Gulf beach as far as we could go up the pass to what is known as Corpus Christi Pass. I found seining boats there, and seven men were with them. When we got there, it was directly after sunup, and they were then putting out their seines in the skiffs-from the edge of the shore. They were just getting the seines in the fishing boats. I have lived on the Texas coast 11 years. Fishermen put the seines out of the skiffs from the roller out behind, and let the seine drag out. These men had a skiff with a roller behind it. That is what they let their seines out with. When I got there that morning, the men were loading the seines on their skiffs. I am sure the defendant was-one of those men. We stopped there a little bit, but did not say anything to these men,, and then we went off. After they had got. their seines in the skiffs, they all got up on the decks of their boats, and set there. We went on a little further up the beach, and turned around, and they were still sitting there, and then we went on up the beach three or four miles to what is known as New Port Wharf to wait there until Col. Sterett and two men who were with him came to
Appellant filed a motion to quash the information and complaint, which was by the court overruled, and to which action of the court appellant reserved a bill of exceptions. The Assistant Attorney General has so fully discussed all the issues arising in this case we copy his brief herein and adopt it as the opinipn of the court:
“Section 4 of said motion insists that the court erred in instructing the jury that it is unlawful for any person to seine or drag a seine at any time of the year in the coast waters of the state of Texas within one mile of either side of any pass leading from the coast waters into the Gulf of Mexico; that the pass leading from the waters of Corpus Christi Bay, in Nueces county, to the Gulf of Mexico, and known as Corpus Christi Pass, is within the prohibited waters of the state of Texas; and that it is an offense for any person to seine or drag a seine within one mile of either side of said pass. This was a correct charge given under article 529g of the Penal Code, as interpreted in the case of Gibson v. Sterett, hereinbefore referred to.
“Appellant gives the same reasons in support of his contention in this instance as he did to the complaint and information. He further insists that the charge is a charge upon the weight of the evidence; that the question was an issue of fact as to whether the channel of Corpus Christi Bay did in fact constitute Corpus Christi Pass. The court by reading the language of the Code as hereinbefore quoted can have no doubt that the court’s charge is correct, and that it was not an issue of fact, but as an interpretation of the statute only.
“The sixth section complains of the court’s charge on circumstantial evidence. I submit that the court’s charge was an admirable one upon that question, and in terms similar to a number approved by this court.
The judgment is affirmed.