Dean v. State
| Decision Date | 03 December 1903 |
| Parties | DEAN v. STATE. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Dorchester County; Chas. F. Holland and Henry Lloyd, Judges.
J Everett Dean was convicted of having in his possession oysters contrary to the provisions of the oyster law, and appeals. Affirmed.
Phillips L. Goldsborough and Frederick H. Fletcher, for appellant.
Attorney General Rayner, for the State.
This is an appeal from the circuit court for Dorchester county. The defendant was indicted and found guilty of having in his possession oysters contrary to certain provisions of the oyster law of this state (chapter 380, p. 650, of the Acts of 1900). The judgment of the court below was that the defendant should pay a fine of $52, and stand committed until fine and costs are paid; whereupon he took an appeal to this court.
There are two questions presented by this record, one arising under the demurrer to the special plea, and the other on a motion in arrest of judgment.
1. The special plea alleged that the oysters in the defendant's possession mentioned in the indictment were upon a certain schooner of which he was the captain, the said schooner being a buy boat; that only 2 1/2 bushels of the said oysters so in his possession were culled by the officers who arrested him or by any one else; and that the whole cargo on said boat has never been culled further than as to the 2 1/2 bushels above mentioned. The state demurred to this plea upon the theory that the law does not require the whole cargo to be culled. Thus it is provided by section 8 (page 652): "Any person who shall have oysters in his possession which contain more than five per cent. of shells and oysters less than two and one half inches from hinge to mouth, which for the purpose of this article are declared to be unmerchantable oysters shall be guilty of a misdemeanor, and in ascertaining such percentage the officers of the oyster police force and the measurers and inspectors, are hereby authorized and directed to select such amount of oysters from any pile, hole or bin, house or other place as he may think proper, and to require the same to be culled and disposed of as provided in section 9 of this article. ***" It is apparent, therefore, that under the foregoing section the officer who is required to do the culling is authorized, in order to ascertain the percentage of unmerchantable oysters in the cargo, to select therefrom any number of bushels he may think proper. In other words, so far from being required to cull the whole cargo, the officer may cull any portion of it to determine the extent to which the law has been violated. The record, however, discloses the fact that in this particular case the defendant waived all right to cull the whole cargo, and admitted that he had in his possession 225 bushels of oysters, and that they will average throughout, as a cargo, 11 per cent. unmerchantable oysters.
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