EEPORT OF STATE BOARD OF FISH COMMISSIONERS. 109 



drift with the current and with the tide, for the purpose of catching 



fish, * * * contrary to the form," etc. 



The trial court denied defendants' motion for a new trial and entered 



judgment on the verdict. Defendants appeal from the judgment and 



order. 

 ********** 



4. Defendants asked an instruction to the effect that there could he 

 no conviction if the Sacramento Slough, mentioned in the information, 

 at the time charged, had neither current nor tide. The court refused 

 the instruction, and defendants now urge this as error. The informa- 

 tion is laid under Section 636, Penal Code, which provides in part as 

 follows: " * * * Every person who shall set, use, or continue, or 

 shall assist in setting, using, or continuing any pound, weir, set-net, 

 trap, or any other fixed or permanent contrivance for catching fish in 

 the waters of this State — and every net shall be considered a set-net 

 that is secured in any way and not free to drift with the current or 

 tide — is guilty of a misdemeanor," etc. It is contended that the jury 

 should have been told that unless there was a current or tide there 

 could be no offense under this section. There was evidence that this 

 slough empties into the Sacramento River about a half mile above the 

 mouth of Feather River; is three or four miles in length, about one 

 hundred feet wide at its mouth and twelve feet deep, and about eighty 

 feet wide where defendants' net was set. Except in midsummer, this 

 slough drains the back country lands into the river, but in August the 

 water of the slough has no perceptible current. Fish may and do pass 

 freely up and down the slough from the river. The ownership of the 

 lands bordering on the slough does not appear. Defendants offered to 

 prove the ownership, but the court held the evidence to be immaterial, 

 and no objection was made or exception taken to the ruling. Upon the 

 authority of People vs. Truckee Lumber Co., 116 Cal. 397: "The domin- 

 ion of the State for the purpose of protecting its sovereign rights in the 

 fish within its waters, and their preservation, for the common enjoy- 

 ment of its citizens, * * * extends to all waters within the State, 

 public or private, wherein these animals are habited or accustomed to 

 resort for spawning or other purposes, and through which they have 

 freedom of passage to and from the public fishing-grounds of the State. 

 To the extent that waters are the common passageway for fish, although 

 flowing over lands entirely subject to private ownership, they are 

 deemed for such purposes public waters, and subject to all laws of the 

 State regulating the right of fishing." Citing cases. Whether or not 

 the water of this slough, at the particular time defendants had their 

 net set across it, was subject to movement by current or tide, is imma- 

 terial. They were forbidden by the law to use a set-net "in the waters 

 of this State," i. e., in any of the waters coming within the regulating 



