Anderson v. State

• Decision Date: 04 October 1948
• Docket Number: 4503
• Parties: Anderson v. State
• Court: Arkansas Supreme Court

213 S.W.2d 615

213 Ark. 871

Anderson v. State

No. 4503

Supreme Court of Arkansas

October 4, 1948

Appeal from Calhoun Circuit Court; Gus W. Jones, Judge.

Affirmed.

Orion E. Gates, for appellant.

Guy E. Williams, Attorney General, and Oscar E Ellis, Assistant Attorney General, for appellee.

OPINION

Griffin Smith, Chief Justice.

Act 146, approved March 4, 1943, authorizes the Game and Fish Commission to issue commercial fishing license to any person who has resided in the State for a continuous period of six months. It permits use of a sein, trammel, or gill net. A further incident to the applicant's status is that in addition to residing in Arkansas for six months, he must have no other home. Sec. 13 (E).

H. H Anderson and five other citizens of Louisiana procured nonresident fishing license under subdivision (B) of § 11, Act 146, paying the annual fee of $ 5.

Roy M. Adams, a resident citizen of Monticello, owned and operated a domestic fish market. He also owned a 400-yard sein, and for 1947 had paid the license imposed by § 13 (C).

Anderson and his associates were arrested by Game Warden Roy W. Hennigan, who took them before a justice of the peace to answer charges of engaging in commercial fishing without the requisite authority. When the arrests were made all but H. H. Anderson were using Adams' sein in Big Johnson Lake, Calhoun County. They had taken approximately 400 pounds of spoon-billed catfish and buffalo. Before the officer took his prisoners to the magistrate, Anderson appeared. His participation in the enterprise is established by affidavit filed in Circuit Court in the form of motion for a bill of particulars.

The arrests were made in September 1947. Following a favorable action on their motion for a continuance, the defendants were given until October 27th to prepare. At that time they were fined $ 50 each, and appealed.

In Circuit Court January 12, 1948, the defendants (who were not personally present) moved through their attorney to dismiss the appeals on the ground that the justice of the peace was without jurisdiction because no warrant of arrest had been issued. It was argued there, as here, that a game warden is not an officer within the meaning of our Code of Criminal Procedure authorizing arrests to be made by a peace officer in obedience to warrant, or without a warrant [in certain circumstances], or by a private person who has reasonable grounds to believe that a felony has been committed. Pope's Digest, §§ 3720-21; A. S. 43-403-4.

Appellants seemingly rely upon § 2 of Act 276 of 1919, where it was provided that wardens should investigate violations of the fish and game laws and report to an officer, ". . . but no such warden shall have power to make arrest or serve warrants unless deputized by the sheriff in the county in which the violation occurs." This provision, however, was superseded by Act 160 of 1927, Pope's Digest, §§ 5851-52. See the new Digest, A. S. 47-119 and 47-120, and Compiler's note at p. 579, v. 4. But, irrespective of the cited Acts, Amendment No. 35 to the Constitution, effective July 1, 1945, is conclusive. Section seven of the Amendment directs the Commission to elect certain personnel, including wardens. Section eight authorizes "all employed personnel" to make arrests for violation of the game and fish laws.

An information filed by the Prosecuting Attorney in Circuit Court is alleged to have been faulty in respect of offense dates. It is our view, however, that the defendants were properly in Court by virtue of their appeal from fines assessed by Magistrate G. W. Earnest, hence sufficiency of the information will not be considered.

Judge Gus W. Jones, who by consent sat without a jury, made express findings that cover five typewritten pages. The substance is that Adams, as owner of the net, was not operating it, but that he had permitted the six defendants to use it. Some of the fish were bought by Adams, the remainder having been sold elsewhere, some in Louisiana. It resulted, therefore, that the men, being nonresidents who had not been in the State six months, did not come within the terms of § 13 (E) of Act 146, and the statutes do not contain other provisions conferring the right to engage in commercial fishing. The fact that each had procured the annual nonresident license mentioned in § 11 (B) was no protection.

Appellants' counsel lays stress upon two contentions: First, any law depriving nonresidents of rights given citizens of this State is discriminatory, hence it would violate the privileges and immunities guarantee expressed in the Fourteenth Amendment to the Federal Constitution, and Art. 2, § 8 of the State Constitution -- due process. If, as we hold, the arrests and trials were authorized by law, due process was observed, and the objection must fail.

Appellants think the evidence shows they were employed by Adams on a wage basis, and they contend that the owner of a net who has complied with the legal prerequisites for commercial fishing may engage others to...