People v. Decker — 32 N.Y. St. Rep. 956

Majority

p. 956

The People, Resp’ts, v. Howard H. Decker, App’lt.

(Supreme Court, General Term, Second Department

Filed July 18, 1890.)

Headnote

1. Malicious mischief — Disturbing- oysters — Penal Code, § 640, sued. 8..

Proof that defendant dragged his rakes for a long distance over ground: which had been planted with oysters, and that such acts must necessarily disturb them, is sufficient to warrant a conviction under subd. 8 of § 640, Penal Code; it is not necessary that any of the witnesses should have seen an oyster disturbed.

2. Same — Evidence.

The admission of the evidence of expert witnesses that rakes rigged in the manner defendant’s were would disturb oysters, is not prejudicial to-defendant, where he admits that his rakes would go to the bottom and disturb oysters if any were there.

Appeal from court of sessions of Richmond county, affirming-judgment of court of special sessions convicting defendant of. the-

p. 957

crime of violating § 640, Penal Code, by disturbing the oysters of one McDonald.

It was shown on the trial that McDonald had planted his lands in Prince’s Bay with oysters, and two witnesses testified that they saw defendant sailing his boat over said oyster beds, having three rakes in the water, which they saw him haul in and lay on the deck, and that such rakes had fourteen fathoms of line attached thereto.

Decker, being sworn in his own behalf, testified that when he sailed across McDonald’s bed his rakes were up; he admitted that he had fourteen fathoms of line attached to the rakes and that the rakes if out in the water would go to the bottom and “ likely disturb oysters or clams if any were there."

The only exceptions taken were to the admission of evidence tending to show that a rake drawn across a bed .where oysters were planted would disturb the oysters planted there.

W. J. Powers, for app’lt; Thomas W. Fitzgerald, dist. att’y, for resp’ts.

The defendant was'convicted under subd. 8, § 640' of the Penal Code.

It was proved beyond all question that the lines upon the defendant’s rakes were about fourteen fathoms in length, and if the rakes were overboard at the time he sailed over the ground in question they would disturb the oysters planted there.

The case only involves a question of fact, and that is whether the rakes were overboard at the time charged. The defendant denies the charge, but two apparently disinterested witnesses, Polwarth and La Forge, testify to the contrary, and the jury believed the latter.

The defendant also excepted to the evidence of witnesses skilled in the business, who testified that rakes rigged in the manner described in the evidence would disturb oysters.

The testimony was immaterial, as the defendant himself testified that his rakes would go to the bottom and disturb oysters if any were there. This admission justified a conviction, in case the jury found he had his rakes overboard at the time, so that the defendant could not have been prejudiced by the admission of that testimony.

The defendant also claims that inasmuch as no witness saw an oyster disturbed a case was not made, but we must assume that to have taken place which, in the nature of things, must have been the result of the defendant’s acts.

If the construction of the defendant is put upon the statute, no conviction could ever be had under the statute. The statute was passed to prevent just such acts as were committed by the defendant, to wit, sailing over ground planted with oysters, with rakes dragging upon the bottom.

The people proved the ground had all been covered with oysters and that defendant dragged his rakes for a long distance over it, and that such acts must necessarily disturb the oysters.

This proof, taken altogether, we think made out a case.

Judgment affirmed.

Barnard, P. J., and Dykman, J., concur.