Noah v. State, 2 Div. 900

• Decision Date: 19 June 1956
• Docket Number: 2 Div. 900
• Parties: Grady W. NOAH v. STATE.
• Court: Alabama Court of Appeals

Page 231

89 So.2d 231

38 Ala.App. 531

Grady W. NOAH v. STATE.

2 Div. 900.

Court of Appeals of Alabama.

June 19, 1956.

Rehearing Denied Aug. 14, 1956.

Walter G. Woods, Tuscaloosa, for appellant.

John Patterson, Atty. Gen., and Robt. P. Bradley, Asst. Atty. Gen., for the State.

PRICE, Judge.

This prosecution for a violation of the provisions of Title 8, Section 69(1), Code 1940, originated in the Justice of the Peace Court on an affidavit and warrant. The charge in the affidavit was that 'the offense of Did fish a gill net in a private lake (Big Keyton Lake) without permission has been committed in said County by Grady W. Noah.' From a judgment of conviction in that court an appeal was taken to the circuit court where a jury found him guilty as charged and assessed a fine of $200. As additional punishment the court sentenced defendant to the county jail for 20 days.

In the circuit court the Solicitor, although not required to do so under Section 56, Title 8, Code 1940, filed a complaint charging that defendant did 'unlawfully, catch or kill, or attempt to take, catch or kill fish by means of a net or seine in a private pond or lake of Big Keaton Fishing Club the property of others in said State and County without consent of the owners thereof.'

Defendant filed a motion to strike the Solicitor's complaint on the ground there was a variance between it and the original affidavit. The court overruled the motion. The defendant then interposed a demurrer to the complaint, which was overruled.

The court's ruling in each instance was proper. Aside from the fact that we are of the opinion the complaint in the circuit court was not a departure from the affidavit in the Justice Court, and that the complaint was not subject to the grounds of demurrer interposed, we conclude, the statement by Judge Simpson in Cusimano v. State, 31 Ala.App. 99, 12 So.2d 418, 419, applies with equal force here: '* * * the original affidavit was sufficient upon which to rest the prosecution in the circuit court. * * * The solicitor's complaint was unnecessary, and whatever its defects (if any), the defendant was not thereby prejudiced.'

The trial Judge denied appellant's counsel the right to ask the prospective jurors, on voir dire, this question: 'I'd like to know if any of them have been on a jury on which they voted for conviction for any offense?'

'The rule in this state is that, the extent of the examination of prospective jurors upon their voir dire rests in the sound discretion of the trial court.' Leath v. Smith, 240 Ala. 639, 200 So. 623, 625. See also Redus v. State, 243 Ala. 320, 9 So.2d 914; Logan v. State, 251 Ala. 441, 37 So.2d 753. We find no abuse of the court's discretion here.

Section 69(1) of Title 8, Code 1940, provides in pertinent part:

'1. It is hereby made unlawful for any person to take, catch or kill, or attempt to take, catch or kill fish, or aid in the taking, catching or killing of fish of any species by the means or use of a seine, net, trap or any similar or other device which may be used for taking, catching, killing or stunning fish, or by the use of hook and line, rod and reel, or by use of dynamite or other explosives, or by the use of any poison, poisonous substance, fishberries, lime or other deleterious or poisonous matter in any private pond, private lake, private pool or private reservoir of this state, except as otherwise specifically provided herein.

'2. Any person who violates any of the provisions of subsection 1 of this section at any time shall be guilty of a misdemeanor and shall, on conviction, be fined not less than twenty-five dollars nor more than one hundred dollars, but if the violation be for seining, netting, dynamiting or poisoning fish in such private bodies of water, the fine shall be not less than two hundred dollars nor more than five hundred dollars and the convicted violator may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than six months at the discretion of the court.

'3. The provisions of this section shall not apply to the owner of any private pond, private lake, private pool or private reservoir or to any member of his family or his duly authorized agent, lessee or any other person holding from the owner specific written authorization, or any person who accompanies the owner or person in possession or control of such private body of water. * * *'

Section 68 of said Title 8 defines public and private waters. Private waters are declared to be, 'any body of water wholly on lands held in fee or in trust, or under lease by any one person, firm or corporation, * * *.'

The State's evidence tended to show that appellant, his wife and another man were observed by E. K. Elledge, a game and fish warden, as they were running gill nets in Big Keaton Lake, a privately operated lake. When arrested defendant had 350 to 400 pounds of fish. He admitted he did not have a permit to fish in the lake.

Officials of the Big Keaton Fishing Club testified the lake and all the lands surrounding it belong to the heirs of a Mr. Allen. It is a natural lake with no dams around it. The club has had the lake rented continuously since 1930. Appellant was not a member of the club and had not been granted a permit to fish in the lake. A receipt for $250 in full payment of rents from April 1, 1954, to April 1, 1955, for Big Keaton Lake, together with a strip of land surrounding the lake 50 feet wide from normal water level, signed 'Bessie McCrossin Hill, individually and as agent for other owners of said lake and lands,' was introduced in evidence.

Appellant testified he went to the lake with Mr. Lewis, the agent of the club, who, he thought, was the caretaker. Mr. Lewis had guests from Birmingham and defendant furnished fish for a fish fry. He admitted that he was fishing in the lake and that he did not have permission from the club. He said he had heard of the club but didn't know the lake was private.

In rebuttal the State introduced testimony to the effect that defendant had requested permission from the club to fish in the lake some two years previously but his request had been refused. It was also shown by Mr. Ingram, Secretary-treasurer of the club, that Mr. Lewis looked after the farming interest of the owners of the land, which comprised some 3,900 acres, but that he was not employed by the club, and had nothing whatever to do with the lake.

As to the public or private character of the lake, Mr. Elledge testified that it covers about 30 acres of land, is a quarter of a mile from the river and does not...