REPORT OF STATE BOARD OF FISH COMMISSIONERS. Ill 



imprisonment in the county jail not exceeding six months, or by a fine 

 not exceeding five hundred dollars, or by both." It is claimed that 

 this section must be read into Section 634 and that the two taken 

 together provide a limit to the maximum fine or imprisonment pre- 

 scribed for the offense here charged, thus fixing a punishment which 

 lodges jurisdiction in the justice's court. This precise question with 

 relation to Section 636, which was in all respects similar as to the pun- 

 ishment, except that the minimum fine was one hundred dollars, and 

 the minimum imprisonment fifty days, was before the court in bank, in 

 People vs. Tom Nop, 124 Cal. 150, and was there decided contrary to 

 the appellant's contention. Upon the authority of that case we must 

 hold the proposition to be without merit. 



2. The defendant also claims that the information does not state a 

 public offense. The charging part of the information is that the defend- 

 ant "on the 11th day of September, 1901, at the County and State 

 aforesaid, willfully and unlawfully have in his possession and sell a 

 certain quantity of fresh salmon, contrary," etc. It will be observed 

 that the verbs "have" and "sell" in the foregoing clause are not in the 

 proper tense; that the word "did" is omitted, or that the words should 

 be "had" and "sold" respectively. We do not think there is any 

 merit in this contention. No information is insufficient by reason of 

 any defect or imperfection in matter of form which does not tend to 

 the prejudice of a substantial right of the defendant upon the merits. 

 (Penal Code, Section 960.) Upon appeal this court must give judgment 

 without regard to technical errors or defects "which do not affect the 

 substantial rights of the parties." (Penal Code, Section 1258.) No 

 error or mistake in any pleading renders it invalid unless it has " actu- 

 ally prejudiced the defendant, or tended to his prejudice in respect to a 

 substantial right." (Penal Code, Section 1404.) We can not see from 

 the record that there was any difficulty on the part of any party con- 

 cerned in the trial in ascertaining from the information precisely the 

 nature and character of the offense charged, nor can we perceive how 

 the defendant could have been prejudiced by the defect in the informa- 

 tion in respect to any substantial right, or any right. 



3. The further contention was made that the court erred in refusing 

 to allow the defendant to offer evidence to show that the fish in 

 question was caught prior to the 11th day of September, 1901. It will 

 be noted that the charge, in effect, was that he had in his possession 

 and sold the fish in question on the 11th day of September, which was 

 the first day of the season provided by the statute. The claim of the 

 defendant is that, if the fish were caught prior to the close season, they 

 became articles of merchandise and the property of the person taking 

 them, and hence, that the Legislature did not have the power to pro- 

 hibit the sale of such merchandise, and could not restrict the right to 



