Love v. State
| Decision Date | 08 August 1969 |
| Docket Number | Nos. 1028,1027 and 1026,s. 1028 |
| Citation | 457 P.2d 622 |
| Parties | William F. LOVE, Appellant, v. STATE of Alaska, Appellee. Marvin E. KAPRON, Appellant, v. STATE of Alaska, Appellee. Jack SNYDER, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
Wendell P. Kay and Milton M. Souter, of Kay, Miller & Libbey, Anchorage, for appellants.
Robert J. Mahoney, Asst. Atty. Gen., G. Kent Edwards, Atty. Gen. and Harold W. Tobey, Dist. Atty., for appellee.
Before NESBETT, C. J., and DIMOND, RABINOWITZ, BONEY, and CONNOR, JJ.
After a jury trial in the district court, appellants were convicted of illegal commercial fishing. The alleged offense occurred on August 21, 1967, in a portion of Red Bluff Bay closed to commercial salmon fishing. 1 The sentences imposed consisted of substantial fines, suspension of appellants' commercial fishing licenses, and confiscation of the proceeds from a quantity of fish which appellants had caught. 2
This appeal is brought on the grounds that the district court committed prejudicial error in admitting evidence of an experiment which had been conducted by personnel of the Alaska Department of Fish and Game and that the superior court erred in affirming the conviction.
The major issue before the trial court was whether the vessel WHIDBY, in command of appellant Love, had made a legal set with its seine outside the closed area, and had then drifted into the closed area of Red Bluff Bay, or whether, as charged by the state, a set was made or had not reached completion at a time when appellants were inside the closed area.
Because of the nature of the issue presented, it is necessary to set forth the major facts testified to at trial.
It should be explained that Red Bluff Bay is a narrow bay on Baranof Island, that it extends inward for a distance of about four miles, with a narrows about one-tenth mile wide which is located about one and one-half miles from the head of the bay. In the narrows there are markers delimiting the area which is closed to fishing at all times, even when the outer portion of the bay is open to commercial fishing pursuant to regulations.
The Department of Fish and Game stream guards who testified at trial were stationed almost a mile inside the markers and could not actually see the markers from their camp.
At the trial the stream guards, Peter Nord and James R. Jones, testified for the prosecution. Both were college students first employed for the summer by the department on July 24, 1967. Both were inexperienced in the art of purse seining, and, though they had received some oral instruction, neither had attended the stream guard training school operated by the department. On August 18, 1967, they were assigned to a stakeout of the area of Red Bluff Bay closed to commercial salmon fishing. 3
Both Nord and Jones testified that they observed the WHIDBY, as well as other fishing vessels, enter the closed area of the bay on the evenings of August 19 and August 20, and anchor for the They did not again sight the WHIDBY in closed waters until August 21, which was the opening day for fishing outside the markers. At about 5:00 p. m. the WHIDBY cruised around the closed waters for about an hour, and then went back out through the narrows to the legal waters beyond. The witnesses stated that they saw the WHIDBY again in the closed area that evening at about 9:00 p. m., proceeding toward the head of the bay. Jones said that this time the vessel seemed to be under full power. The vessel was out of view for about 20 minutes while he went to his camp to obtain certain physical possessions. When he next saw the WHIDBY, it had drifted closer to where he was standing. At this time the stream guards heard the outboard motor of a skiff start, and they saw the skiff make what they described as a rapid circle and rejoin the WHIDBY.
night. Neither observed the WHIDBY engage in fishing on either occasion, although they kept the vessel under close scrutiny.
After observing this circling pattern, both witnesses heard clanging noises, shouting, and engines operating. After listening to the noises for some time, Jones proceeded in his kayak to the WHIDBY and placed appellants under arrest. At the time the WHIDBY was boarded, about half the seine was aboard and all of the purse rings were on board. Jones had not observed any wind while he was ashore, but noticed gusts of wind when he boarded the WHIDBY. When the arrest was made, appellant Love denied the charges and said that they had drifted into the closed area because of bad wind and tide. After the arrest the crew finished securing the fish, which were later sold to a buyer, with the proceeds impounded for possible confiscation by the state. The set resulted in the capture of 8,763 salmon, weighing about 43,647 pounds.
Each appellant and William F. Love, Jr., son of the appellant, testified that they had entered the closed area of the bay on August 19 and 20 for the purpose of investigating the numbers and whereabouts of salmon in the area and to ascertain their movements. Appellants Love and Snyder testified that their investigations revealed a large number of salmon and that the salmon tended to drift in and out of the closed area with the tide. They testified that on the opening day, August 21, 1967, they scouted around the bay until the other vessels which had come there to fish had departed for lack of finding any significant numbers of fish. They testified that they went into the closed waters of the bay about 5:00 p. m., at which time they saw a large number of salmon. The WHIDBY then headed out past the markers to wait for the fish to drift out with the last stages of the ebb current. They testified that at about 8:30 or 9:00 p. m., while the WHIDBY was approximately 100 yards outside the markers, the large school of salmon was spotted drifting past the markers toward them. It was then that they made the set. This was just about at the turn of the tide, as it began to flood. The height of the tide was about nine feet above datum plane. Each appellant stated that the purse rings were brought aboard the vessel while they were still in legal waters. 4 Thereafter, they testified, the WHIDBY drifted through the narrows into the closed area.
Appellants pointed in their testimony to two factors which caused them to drift into the closed area. First, after the purse rings were brought aboard, the seine was pulled up to a boom about 20 feet above the deck of the vessel, and the wind, which they estimated was gusting at 15 to 25 miles per hour toward the Appellants testified that when they realized that the WHIDBY was drifting into the closed area, an anchor was cast overboard. However, the anchor caught in the seine, and only when this was later discovered was the anchor cleared. It finally caught hold. They stated that the clanging noises heard by the stream guards were caused by several factors. The purse rings, once aboard, are stacked on a pin located on the deck, called a hairpin, and this stacking procedure causes clanging noises. However, the process of gathering in the balance of the seine requires that the rings be taken off the hairpin. They are then pulled through a block and allowed to come down again; whereupon they are put on what is called a ring pin. These procedures also cause clanging noises. This process goes on during and until the last of the seine is back on the stern of the vessel, having gone through the block and back onto the stern. Other similar noises are caused by winches, blocks, and engines.
head of the bay, blew upon the hoisted seine, which acted like a sail to push them into the closed area. Second, after the rings were aboard, there remained a large bag of fish extending 24 to 30 feet below the water's surface and upon which the current of the incoming tide and the motion of the fish themselves, which tend to swim with the tide, exerted a force toward the head of the bay.
It was claimed that the circling pattern observed by the stream guards was not the making of a set, because the skiff with an outboard motor was not sufficiently powerful to pull the seine in a circle, i. e., starting from the vessel and returning to it again. Appellants testified that the purpose of sending the skiff out was to prevent the seine's corks from being pulled under the water by the weight of the salmon in the seine.
The dissenting opinion states that there was no dispute as to the time the set was made, that stakeout witness Jones saw the circling pattern of the small boat immediately after 8:30 p. m., and that stakeout witness Nord testified that at about 9:00 p. m. appellants' boat came near them and made a circle, which he thought to be a set. From this it is urged that appellants failed to explain how the WHIDBY could have drifted one mile without the passage of appreciable time, and that this probably accounts for the disbelief of their testimony by the jury. We find the record far from clear about the times at which various phases of the operation either occurred or were observed.
Mr. Nord said that the WHIDBY came into the closed area 'around nine' in the evening. He then said that before he saw the vessel, he heard noises from it. It is not clear whether he heard noises at about 9:00 p. m. or observed the vessel then. But when he saw the WHIDBY, it was coming down somewhere in the middle of the bay. It then came over toward the camp until it was close to shore. How much time elapsed between when Nord first heard or saw the WHIDBY and when it arrived opposite the camp is not clear from the record.
The witness Jones first testified that he saw the WHIDBY at 8:30 or 9:00 p. m. At one point on cross-examination he testified that when the WHIDBY was in front of the camp it could have been 9:30 p. m. In a written statement made shortly after the incident he said that at approximately 9:00 p. m. the WHIDBY entered the closed area of the bay. He...
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