Roetzel v. State

• Decision Date: 15 December 1900
• Citation: 60 S.W. 27,68 Ark. 487
• Parties: ROETZEL v. STATE
• Court: Arkansas Supreme Court

60 S.W. 27

68 Ark. 487

ROETZEL v. STATE

Supreme Court of Arkansas

December 15, 1900

Appeal from White Circuit Court, HANCE N. HUTTON, Judge.

Reversed and remanded.

Grant Green, for appellant.

Jeff Davis and Chas. Jacobson, for appellee.

WOOD J. BATTLE and HUGHES, JJ., not participating.

OPINION

WOOD, J.

The indictment charges that Frank Roetzel "on the 22d day of December, 1899, in the county of White aforesaid, then and there unlawfully did catch fish with a net in the waters of this state, to-wit: Horseshoe lake, said fish not then and there being caught for family use, nor for a picnic."

There was proof from which the jury might have found that defendant assisted in seining Horseshoe lake with a seine over 60 feet in length, and the meshes of which were less than 4 inches apart; that fish were taken from said lake; and that defendant, took two of them home with him. There was evidence also to the effect that the meshes of the seine were 4 inches or over.

The court read to the jury the act of June 26, 1897, and gave the following instructions:

"1 The material allegations in the indictment are that the defendant, Frank Roetzel, in the county of White, on or about the time alleged in the indictment, or within one year next before the filing of the indictment, which was filed in this court, on the 23d day of January, 1900, unlawfully caught fish, or aided and abetted or assented to the unlawful catching of fish, in Horseshoe lake.

"2. The first thing for the jury to determine is, did the defendant take fish from Horseshoe lake unlawfully, or aid or assist in doing so? The next question, did the defendant use a seine 60 feet in length? If you so find beyond a reasonable doubt, then the defendant would be guilty.

"3. Meshes 4 inches square applies to a lawful seine, and 60 feet is a lawful seine. Over that length is unlawful.

"4. The jury are instructed that one may use a seine not to exceed 60 feet in length, with meshes not less than 4 inches square, to catch fish for family use, or for picnics, or for stocking other waters or ponds.

"5. The jury are instructed that the use of a seine of more than 60 feet for taking or catching fish is unlawful without regard to the size of the meshes. To the giving of each of which instructions, the defendant excepted separately."

The defendant asked, but the court refused, to instruct the jury as follows:

"1. Before the defendant, Frank Roetzel, can be convicted of the offense charged in this indictment, it must appear to the jury from the testimony,beyond a reasonable doubt, that the defendant caught fish with a net in Horseshoe lake, in White county, Arkansas, not for family use or picnic, and that the net used...