Keoun v. State

• Decision Date: 26 June 1897
• Citation: 41 S.W. 808
• Parties: KEOUN v. STATE.
• Court: Arkansas Supreme Court

41 S.W. 808

KEOUN v. STATE.

Supreme Court of Arkansas.

June 26, 1897.

Appeal from Columbia circuit court; Charles W. Smith, Judge.

Jim Keoun was convicted of violating the fish law, and appeals. Reversed.

Appellant was convicted of violating the fish law, and appealed to this court. The indictment is as follows: "The grand jury of Lafayette county, in the name and by the authority of the state of Arkansas, on oath, accuse the defendant, Jim Keoun, of the crime of taking and destroying fish, committed as follows, to wit: The said defendant, on the 1st day of July, 1894, in Lafayette county, Arkansas, did unlawfully then and there cast, drop, and put in Tyler Lake, on Bodcaw, explosive material known as `dynamite,' with intent to kill, maim, and paralyze fish therein, and took from said waters fish that had been so killed and paralyzed as aforesaid, against the peace and dignity of the state of Arkansas," At the commencement of the trial, in response to an inquiry of the court as to which offense he would prosecute the defendant for, the prosecuting attorney stated that he would prosecute him for taking fish out of the water killed or maimed by dynamite. And, in his opening statement to the jury, the prosecuting attorney said: "It is only intended to convict the defendant of one offense. That the state will not attempt to convict the defendant of killing fish, but will only prosecute him for taking out fish that had been killed or maimed by dynamite." The evidence tended to show that dynamite was put in Bodcaw Creek, and that defendant was seen soon thereafter taking a fish out of the creek, about the place where the dynamite was exploded. The evidence is that Tyler Lake is one-half mile on a straight line, and one mile the way the creek runs, from the place where the fish was taken out of the creek by the defendant. Lee Gilbert, a witness for the state, testified: "Bodcaw Creek runs through Tyler Lake. The lake is over a half mile long, and, like other lakes on that creek, is wider than any other part of the creek. The lake is known as `Tyler Lake.'" Upon the trial, the court, at the instance of the state, gave the following instruction, numbered 1: "The jury are instructed that if they find beyond a reasonable doubt, from the testimony, that the defendant, in Layfette county, Arkansas, in Bodcaw Creek, within one-half mile of a wide place in said creek, known as `Tyler Lake,' did explode or deposit any dynamite with intent to kill or maim any fish, or assist, consent, or encourage another in so doing, or if, at said time and place, he took from the waters of said creek any fish killed or paralyzed from exploding dynamite, or stood by assisting, aiding, or encouraging another in so doing, they will convict the defendant." To the giving of said instruction, appellant at the time excepted. The following instructions, numbered 1, 2, 3, and 4, were asked for at the instance of the appellant: "(1) The jury are instructed that in this case, before they can find the defendant guilty, they must believe from all the facts and circumstances in the case that the defendant is guilty beyond a reasonable doubt. (2) Every material allegation in this indictment must be proven by the state, and, unless they find from the evidence that the state has proven every material allegation in this indictment, they will acquit the defendant. (3) The jury are instructed that unless they find from the evidence, beyond a reasonable doubt, that the state has proved that the offense was committed in Tyler Lake, as alleged in the indictment, you will acquit the defendant. (4) The jury are instructed that unless they find from the evidence in this case that the defendant, in Lafayette county, Arkansas, beyond a reasonable doubt, within twelve months before the filing of this indictment, both put the explosive material in said waters, and took fish therefrom, as alleged in the indictment, they will find the defendant not guilty." The court gave the instructions numbered 1 and 2, and refused those numbered 3 and 4, to which refusal appellant at the time excepted. The following verdict was rendered by the jury: "We, the jury, find the defendant guilty as charged in the indictment, and assess his fine at $50." Appellant, in due time, filed his motion in arrest of judgment as follows: "Comes the defendant herein, and moves the court in arrest of judgment in this case, and for cause says: (1) That the indictment is defective, in this: that it charges two separate offenses against the laws of the state, without concluding the separate counts of said indictment, `against the peace and dignity of the state of Arkansas,' as required by law. (2) That the indictment herein charges no offense against the laws of the state of Arkansas. (3) That said indictment is in other respects indefinite and informal." Appellant then filed his motion for a new trial, which is as follows: "Comes the defendant, and asks the court to set aside the verdict rendered herein, and grant him a new trial, and for cause says: (1) That the verdict rendered by the jury in this cause is contrary to the evidence. (2) That the verdict of the jury herein is contrary to the law. (3) That the verdict of...