Ray v. State

• Decision Date: 09 March 1931
• Docket Number: 29310
• Court: Mississippi Supreme Court
• Parties: RAY et al. v. STATE

132 So. 755

159 Miss. 887

RAY et al. v. STATE

No. 29310

Supreme Court of Mississippi

March 9, 1931

Division B

APPEAL from circuit court of Itawamba county, HON. C. P. LONG Judge.

Wiley Ray and others were convicted for unlawful seining, and they appeal. Reversed, and remanded for new trial.

Reversed and remanded.

W. A Blair, of Tupelo, and A. T. Cleveland, of Fulton, for appellants.

Appellants contend that it was shown by the state's own testimony that the lakes were separated and went dry the summer in which the defendants caught the fish, that is the place where they caught them and that defendants should have been granted a directed verdict at the close of the state's testimony.

Where a pond was filled entirely from over-flow creek and became practically dry in the summer, defendants could take fish therefrom with seine.

Hawthorne v. State, 119 So. 303.

Eugene B. Ethridge, Assistant Attorney-General, for the state.

The appellants were guilty of violating restrictions with regard to taking of game fish.

The testimony shows, and the jury found, that appellants seined in a lake which had never gone dry, and that they caught game fish from said lake as a result of said seining.

The jury being the triers of fact, it cannot be expected that this court will reverse its finding, when such verdict is based upon convincing and competent evidence.

Simmons v. State, 109 Miss. 605; Felder v. State, 108 Miss. 580; Jackson v. State, 105 Miss. 782.

No judgment shall be reversed on the ground of misdirection to the jury, or the improper admission or exclusion of evidence, or for error as to the matter of pleading or procedure, unless it shall affirmatively appear, from the whole record, that such judgment has resulted in a miscarriage of justice.

Rule 11 of the Supreme Court of Mississippi.

Where a record fails to show any order with reference to demurrer to an affidavit lodged before that court, such omission constitutes a waiver of the demurrer, and this court will not consider the demurrer further.

Sherrod v. State, 90 Miss. 856; Hunt v. State, 61 Miss. 577; Section 3403, Code of 1930.

OPINION

Ethridge, P. J.

The appellants were prosecuted for unlawful seining. The affidavit was made out before a justice of the peace of district 5 in Itawamba county, and the affidavit charged that "Henry Ray, E. L. Sappington, Wiley Ray, Hugh Nichols and E. L. Kennedy, on or about the 10th day of July, 1929, in the county aforesaid in said Justice District did wilfully and unlawfully take or kill game fish not with hook and line or dip nets and not from private ponds or from barrow pits, or overflow ponds which go dry in summer when cut off from the regular stream said fish being taken with seine from a running body of water, to-wit: the 'Fish Lake' which does not go dry in summer, same being in Tombigbee River Bottom against the peace and dignity of the state of Mississippi."

It appears that appellants, on or about the day mentioned in the affidavit, went to a body of water in the Tombigbee river bottom, which body of water was fed from the overflow of a creek which ran into the Tombigbee river, and that during a good part of the year the water was running water and that some of the water constituted lakes that did not go dry in the summer. The proof shows that the appellants went into some of the water, and that it was too deep to seine successfully, and they did not catch anything in this deep water. They went to another lake or place of the slough, it not being then a running body of water, and went into a prong which was separated from the other lake and which, according to the proof of the defendants, would go dry in the summer, and seined therein and caught some fish. These witnesses for the defendants testified that they went to the lake about the time the court convened, and the place where the lake or body of water in which they did the seining and caught the fish had been, was entirely dry, and that if frequently went dry in the dry season of the year. This body of water where the seining was done had banks, and at some parts of the year was connected with the other body of water and slough, and during some seasons of the year constituted a running stream.

The proof for the state tended to show that the lake never went dry, and that it was a part of the chain of lakes or waters which at some time of the year constituted a running stream, and at other times there was land between the two bodies of water which was dry, but the lake in which the seining itself was done never went entirely dry.

The court granted the state two instructions reading as follows "Th...