85 Mich. 105 | Mich. | 1891
Defendants were convicted in the Barry circuit of a violation of Act No. 329, Local Acts of 1885, which reads as follows:
“Section 1. The People of the State of Michigan enact, That it shall not be lawful for any person to take or catch any fish in' the waters of Gun lake, in the counties of Barry and Allegan, by means of spear, firearm, net, trap-net, snare, or by the use of f jacks/ or artificial light of any kind, or by the use of dynamite, giant-powder, or any other explosive substance or combination of substances.
“ Sec. 2. Any person violating any of the provisions of this act shall be deemed to be guilty of a misdemeanor, and upon conviction shall be fined not to exceed fifty dollars and costs of suit, or imprisonment in the county jail not to exceed sixty days, or both such fine or imprisonment, in the discretion of the court.
“ Sec. 3. In all prosecutions under this act it shall be prima facie sufficient, on- the part of the people, to show that the defendant was found upon the waters of said lake with spear, net, trap-net, f jack/or artificial light of any kind, or with dynamite, giant-powder, or any other explosive substance or combination of substances."
Pan lake empties into Gun lake, and Gun lake covers
“I shall request your honor to direct a verdict of acquittal of these defendants. That is all we can do. I will put it in writing.
“ Oourt. Yes, you may do so. I think, under the proof in the case, the court should direct a verdict. There is nothing really to go to the jury. You admit the act, as I understand it.
“ Counsel for Defendant. Yes, sir; we don't deny the taking of these fish.
“ Court. I think a verdict may be entered for the people in the case, convicting the defendants of this offense, and the jury may be discharged from the case.”
It does not appear here that the land of James Collison extends into the lake, but in bur view of the case.that is entirely immaterial, as the rule would be the same whether he did or did not own the land over which the fish were caught. It is sufficient that he did not .own Gun lake, and, even though he did, that it connected with other lakes and streams through which fish migrate. The right of James Collison to fish in Gun lake is not an exclusive right, and the design of the statute is to protect others in Gun lake, as well as in the other waters connecting therewith, in the enjoyment of the same privilege. The right to fish even in these waters is so far public that the State may by statute protect it. The protection of fish in Gun lake is necessary for their preservation in the waters of Pan lake, Gun river, the Kalamazoo river, Lake Michigan, and the other Great Lakes. Defendant James Collison never acquired any property in the fish which frequent Gun lake. By reason of their migratory habits, their ownership is in the whole people of the State, and no individual has any property right in them until they have been subjected to his control.
“Unless the catching of fish," as is said by one writer, “is conducted with reason, either the fish may be altogether exterminated, or the enjoyment of the right by*109 one may interfere with the equal enjoyment of the right by others.”
Hence, for the protection of fish, a valuable article of food and merchandise,' the control of which is in the State, and to preserve equality in the right to fish, the State has an undoubted right to regulate the manner in which they shall be caught, and to protect their migrations. There was no error in the refusal of the court to direct a verdict for defendants.
We think, however, that the court erred in discharging the jury, and directing a verdict of guilty to be entered by the clerk. In no sense can- this be said to have been a trial by a jury. The verdict of the jury is absolutely wanting. If the defendant in a criminal case cannot waive a trial by jury, it is difficult to see how this conviction can be sustained. In the case of People v. Neumann, ante, 98, and in the several cases therein referred to in support of the conclusion arrived at there, the jury acquiesced in the direction of the court; but here the court gave the jury no opportunity to follow, or to refuse to follow, the court's .direction; in fact, there was no direction to the jury, but one to the clerk to enter a verdict.
For this error the conviction must be set aside, and a new trial had.
See Sterling v. Jackson, 69 Mich. 488, for a valuable case on this subject.