102 S.W.2d 219 | Tex. Crim. App. | 1937
— Conviction for seining in Lake Wichita with a wire seine; punishment, a fine of $25.00.
It is charged in the complaint and information that appellant did unlawfully set and drag in the waters of Lake Wichita,. in Wichita County, Texas, with a net and seine made of wire and other metallic substance. Upon the trial appellant made the point that the information did not allege that Lake Wichita was a fresh water lake, it being asserted that the statute governing this case forbids seining with a wire seine in.fresh water.
Art. 948, P. C., provides as follows:
“It shall be unlawful for any person to set or drag in any of the fresh waters of this State any net or seine made of wire or other metallic substance.”
I do not agree with my Brethren in their conclusion. I am inclined to believe that Art. 926, P. C., which provides as follows:
“For the purpose of establishing the dividing line between the salt and fresh waters of this State, in so far as it pertains to the fishing laws, all fresh water rivers and streams in this State, and all lakes, lagoons, and bodies of rivers, except tidal bays or coastal waters, such as bays and gulfs, shall be and are hereby declared to be fresh water streams and rivers to their mouths, and it shall be unlawful to set nets or drag seines or fish in other ways in such streams, rivers and their connecting lakes, lagoons, and bodies of water mentioned, except in conformity with the laws enacted to govern, apply and control in fresh water fishing,” is sufficient to establish the fact that all lakes in this State, “except tidal bays or coastal waters,” are fresh water lakes, and that it being alleged that Lake Wichita is in Wichita County, which is judicially known to the court to be a great distance from any tidal bays or coastal waters, — makes this information, for every purpose, as though it in so many words alleged that Lake Wichita was a fresh water lake. See Taylor v. State, 55 S. W. Rep., 832. However, the point is of no great importance, and I do not care to record a dissent. Following the views of the majority, we hold that the information should have alleged that Lake Wichita was a fresh water lake, and the judgment will be reversed and the prosecution ordered dismissed.
Reversed and prosecution ordered dismissed.
