People v. Page — 159 N.Y.S. 1008

Majority

p. 1008

(173 App. Div. 422)

PEOPLE v. PAGE.

(Supreme Court, Appellate Division, Third Department.

June 30, 1916.)

Headnote

Eish @=>13(2)—Set Lines—Criminal Prosecution.

Under Conservation Law (Consol. Laws, c. 65) §§ 176, 182, as amended by Laws 1913, c. 508, prohibiting, and providing a penalty tor, the use of a set line for the purpose of taking fish, and that any person aiding in any manner in the prohibited act shall be deemed to have violated section 176, where defendant placed minnows on lateral lines attached at intervals to a fixed line extended across a lake, he was guilty of a violation of the statute, whether or not any fish were caught.

[Ed. Note.—For other cases, see Fish, Cent. Dig. § 23; Dec. Dig. @=>13(2).]

Howard, J., dissenting.

«gszaFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Appeal from Trial Term, Fulton County.

Silas Page was acquitted of a violation of Conservation Law, §§ 176, 182. From the judgment, and from an order denying a motion for a new trial, the People appeal. Reversed, and judgment ordered against the defendant.

Argued before KELLOGG, P. J., and LYON, HOWARD, WOODWARD," and COCHRANE, JJ.

Egburt E. Woodbury, Atty. Gen., and William T. Moore, Asst. Deputy Atty. Gen., for the People.

This is an action to recover a penalty of $60 against the defendant for using a set line in the waters of Mud Lake, in the county of Hamilton, on or about June 14, 1915, contrary to the provisions of sections 176 and 182 of the Conservation Law. Laws of 1913, c. 508.

In the fore part of June, 1915, the defendant made a fish line by doubling a quantity of ordinary binding twine. This line, when made, he wound on a salmon can and kept in his house several days. It then disappeared from the house, and the same line, or one so nearly like it as not to be distinguishable, was seen in the waters of Mud Lake. It extended all the way across the lake about 80 rods. It was fastened at the ends, and to it at intervals were attached lateral lines with hooks, A daughter of the defendant testified to the foregoing facts, and also that she went fishing with her father in a boat on the lake, and that she saw the line there, and that her father put minnows on the hooks. No fish seem to have been caught at that time. Two or three days thereafter the defendant brought home lake trout, such as inhabited the lake in question, and gave them to his daughter, and some were sold. This was between June 5th and June 10th. On June 14th the defendant, with his spn, were seen by two witnesses to row out on the lake in the location where the line was set, stopping at intervals as if to make an examination thereof. These witnesses on the following day removed the line from the water, and it was subsequently turned over to a game protector of the state. The defendant was not a witness and offered no testimony.

p. 1009

The uncontradicted testimony, therefore, shows that the defendant was using, a set line for the purpose of taking ñsh in direct contravention of section 176 of the Conservation Law. It is not necessary to subject a person to the penalty that fish should actually be caught. It is the use of the set line for the purpose of taking fish that constitutes, the liability. Said section 176 further provides:

“Any person aiding in any manner in such prohibited acts shall be deemed to have violated this section.”

The placing of minnows by the defendant upon such a line or device, constructed as this was and under the circumstances disclosed by the testimony, permits no inference other than that the purpose of the defendant was to take fish from the lake in a manner condemned by the statute. The testimony being uncontradicted that the defendant was unlawfully fishing, the trial justice should have granted the motion of the plaintiff to direct a verdict against the defendant for the amount of the penalty.

The judgment and order should be reversed, with costs, and judgment ordered against the defendant for $60, besides costs. All concur,, except HOWARD, J., who dissents.