State v. Woodard

• Decision Date: 10 October 1898
• Citation: 31 S.E. 219,123 N.C. 710
• Parties: STATE v. WOODARD.
• Court: North Carolina Supreme Court

31 S.E. 219

123 N.C. 710

STATE v. WOODARD.

Supreme Court of North Carolina

October 10, 1898

Appeal from superior court, Bertie county; Brown, Judge.

J. A Woodard was convicted of fishing in Albermarle Sound with a gill net exceeding 20 yards in length, and he appeals. Affirmed.

W. M Bond, for appellant.

Francis D. Winston, R. B. Peebles, and the Attorney General, for the State.

FURCHES J.

This is an indictment under chapter 51 of the Acts of 1897, for unlawfully fishing in the waters of Albermarle Sound. The statute is singularly drawn, and its policy is not apparent to us. It is contended on behalf of the state that its object is to protect its citizens from the depredation of persons from other states, while it is contended by the defendant that its object is to destroy the small fisheries in the interest of the large beach seine fisheries. And it seems rather singular that a gill net 80 yards long is permitted to be used in Roanoke river, one-fourth of a mile wide, while one not more than 20 yards long is allowed to be used in Albemarle Sound, which is from 6 to 12 miles wide. But we have nothing to do with these matters of policy further than they may assist us in putting a proper construction upon the act of the legislature under which the defendant is indicted and, as neither the evil to be remedied nor the benefit to be attained by this statute is apparent, we are furnished no aid from this source.

The defendant contends that this act is unconstitutional, as it interferes with the natural right of a citizen of the state to fish in its navigable waters. But this question seems to have been decided against the contention of the defendant. Rae v. Hampton, 101 N.C. 51, 7 S.E. 649.

The defendant also objects to the venue, in Bertie, and says that it should have been in Chowan, county. But this is a matter under the control of the legislature, and, upon an examination of the act, it is found that Bertie is included in the counties where the indictment may be had. Besides, if there was ground for this objection it should have been taken by plea in abatement.

This brings us down to the question as to whether the matters found in the special verdict were a criminal violation of the act under which the defendant is indicted, and we are of the opinion that they were; that under this act he could only fish with nets 20 yards long. The defendant, for some reason and, we must suppose, for the...