Nov. 23, 1895. J 



FORES? AND STREAM. 



481 



stock fish for the replenishing of the waters of the State, 

 your Commission entered into arrangements with a number 

 of fishermen by which the latter were permitted to net carp 

 under the supervision of wardens. In a few instances these 

 permits were abused and promptly revoked, but in most 

 cases the fishermen were conscientious in returning to the 

 water all the food fish not wanted by the Commission. The 

 result of this netting was the removal of hundreds of tons of 

 carp from this State and the establishment of the fact that 

 in a number of the waters of the State the carp had driven 

 away all other kinds of fish. 



Legislation. 



During the last session of the Legislature certain laws 

 were passed for the better protection of the fishing and gun- 

 ning interests of the State. Some of these laws were sug- 

 gested by your Commission; others emanated from members 

 of the Senate and General Assembly. A practical applica- 

 tion of these laws has developed the fact that there are in 

 them a number of incongruities. Your Commission has 

 been at considerable pains to ascertain the desires and wants 

 of various portions of the State, and sees no reason why a 

 law should not be passed providing at the same time for the 

 better protection of sport and paying a judicious regard to 

 the interests of those who may be injuriously affected by a 

 too close attention to the wants and desires of the sports- 

 men. 



For this reason your Commission desires to offer the fol- 

 lowing suggestions: 



The law dividing the State into two game sections has at 

 times given rise to some complications, but it is difficult to 

 see how these can be avoided. The habits of birds and fish 

 would naturally indicate the necessity of different laws for 

 different portions of the State. Although the law has given 

 satisfaction on general principles to the southern portion of 

 the State serious objections have been made thereto in the 

 northern portion. At present the general season is opened 

 on Oct. 25 in the northern section of the State. In many 

 years woodcock take their southern flight before that date, 

 and consequently the sportsmen of the northern section who 

 are compelled to abstain from killing the birds until Oct. 25 

 are deprived of all sport as far as woodcock are concerned. 

 Giving the sportsmen ten more days at the beginning of the 

 season would be in a measure satisfactory in the northern 

 section without being open to the objection that there would 

 be no birds left for the people in the southern section. Your 

 Commission would accordingly recommend opening the 

 season on Oct. 15 in the northern game section. 



The law at present provides that the season for upland 

 plover and doves shall be from Nov. 1 to Dec. 15. Long be- 

 fore the opening of the season both plover and doves have left 

 the State, and if these birds should be shot at all— and there 

 seems to be little reason to the contrary, especially as far as 

 plover are concerned— a season should be established begin- 

 ing as early at least as the opening of the season for wood- 

 cock and quail. 



The seventeenth section of the general fish and game act 

 provides that eel baskets or eel weirs maybe maintained 

 from Sept 15 to Nov. 1. There are serious objections to this 

 law % Although the principle that fish and game belong to 

 the State and not to the individuals on whose property they 

 may be found has been generally adopted, there is no reason 

 why some special privileges should not be given to the 

 farmer and land-owner, who in some instances are an- 

 noyed by the presence of game on their properties. Eell 

 weirs are destructive to the life of fish, and if these were 

 permitted to be indiscriminately used there would soon be 

 an end to the fish supply in the fresh waters of this State; 

 Your Commission would accordingly suggest the passage of 

 a law by which farmers and land owners may be permitted 

 to make use of eel pots and eel baskets placed on the bot- 

 toms of streams at all times of the year. These contrivances 

 are more easily constructed and are more effective in the 

 taking of eels and catfish than are eel weirs, and the result 

 of such an enactment would be that land-owners would be. 

 enabled to take these fish whenever it suited them to do s®, 



The section of the law making it unlawful to. renaiOTw 

 game and fish from the State excepting by the person who 

 may have lawfully captured the same has met with consid- 

 erable opposition in the southern portion of the State, where 

 there are still a few men who depend on marketing game to 

 assist them in gaining a livelihood. Your Commission 

 would, however, respectfully urge that something must be 

 done to put a stop to the diminishing of game and fish, 

 within the borders of New Jersey, and for this reason the 

 section above referred to was enacted. The last Legislature 

 in passing, this law only followed in the footsteps of twenty- 

 seven other States where such measures have been in force 

 for many years. States in the extreme West and South, 

 which are still teeming with game, have adopted similar 

 laws, and compared to the laws of those States the law of 

 New Jersey is anything but stringent. The principal objec- 

 tion to the law was that it prevented the marketing of reed 

 birds by dealers. In this connection it should be remem- 

 bered that the reed bird is during the larger portion of the 

 year an insectivorous bird of great value to the farming 

 community. To permit the shooting of these birds by the 

 thousands would eventually drive them from our shores, 

 and the result would be a serious loss to the citizens of this 

 State engaged in agricultural'pursuits— a loss which, once 

 sustained, would be irreparable. 



Your Commission would also respectfully call attention 

 to a law at present upon our statute books which has given 

 rise to a great deal of complaint. The law referred to grants 

 a charter to the West Jersey Fish and Game Protective 

 Society, and provides that no person shall gun or fish in the 

 six southern counties of the State without having first com- 

 plied with such by-laws as this society may have seen fit to 

 enact. The principal by-law of this society provides that 

 non-residents must become members before they can shoot 

 or fish, but any non-re3ident can attain membership upon 

 the payment of $5 for the first year and $2 for each subse- 

 quent year. Aside from the questionableness of a delega- 

 tion of the lawmaking power by the Legislature to another 

 body comes the objection that the by-law opens our fields 

 and streams to such non-residents as can afford to pay for 

 the same. The law in our opinion is not in accordance with 

 the spirit of American institutions. To exclude a man from 

 certain privileges because he cannot afford to pay $5 there- 

 for does not speak well for the hospitality of New Jersey. 

 Numerous complaints concerning this law have been re- 

 ceived, and information obtained from our wardens is to the 

 effect that the violators of the law who have been prosecuted 

 in the counties where this law applies were almost invari- 

 ably members of this society. Your Commission is also in- 

 formed that the membership of this society is composed 

 principally of sportsmen from Philadelphia and other places. 

 Your Commission would accordingly suggest the repeal of 

 this law. 



Works on Sunday — 



Talks business seven days in the 

 week — a "Forest and Stream" Kennel 

 ? Special advertisement 



J 



fante mttt ttfisff §rotecfwtt. 



Pennsylvania Association. 



Philadelphia, Nov. 16.— The regular monthly meeting of 

 the Pennsylvania Fish Protective Association was held Sat- 

 urday evening, Nov. 9, at the rooms, 1020 Arch street, Phila- 

 delphia. 



The following resolution was passed: 



Whereas, A recent Act of the Legislature of New York, permitting 

 the use of eel weirs in the inland waters of that State, has resulted in 

 restoring a number of these destructive devices in the Delaware River, 

 which, unless destroyed, must work irreparable injury to the vast 

 fishing interests involved in said stream, and nullify much of the hard 

 and persistent effort of the Pennsylvania and New Jersey Fish Com- 

 missions, 



Resolved, That the Pennsylvania Fish Protective Association heart- 

 ily indorse the decision of the Pennsylvania Commissioners of Fisher- 

 ies, that the Delaware being a boundary stream is not affected by the 

 New York eel weir act, and urge upon the New York Commissioners 

 of Fisheries concurrent action, that the Delaware may remain clear of 

 these deadly obstructions. 



A special committee reported that enough evidence has 

 been adduced during the period that these weirs have been 

 placed in the river to show their damaging effect. Large 

 numbers of fish have been captured, especially wall-eyed 

 pike and black bass, while the slats of the eel weirs have 

 been covered with young shad caught on their way down 

 the river and killed in the traps. The following was also 

 passed: 



Resolved, That the Pennsylvania Fish Protective Association earnestly 

 commend the action of the Pennsylvania Commissioners of Fisheries 

 in their effort to design with the New York Commissioners of Fisheries 

 a uniform interstate law for the protection of fish in the upper Dela- 

 ware, similar to that now in force with New Jersey; and that the in- 

 fluence of the Association be exerted in behalf of securing such legis- 

 lation. 



The Committeelon Protection and Distribution of Fish sub- 

 mitted a lengthly report. The distribution of fish by the 

 State Commission had exceeded the output of any previous 

 year. Owing to the extraordinary demand for bass, an extra 

 appropriation of $5,000 had been secured from the Legislature 

 for the purchase of same; 35,000 black bass had been distrib- 

 uted, together with large quantities of calico bass, white 

 "bass, rock bass, yellow perch, and upwards of 30,000 Lake 

 Erie sunfish. The distribution of brook trout exceeded 

 3,500,000 in addition to 750,000 other species of trout fry, a 

 grand total exceeding 4% millions. 



The warden service of the State has improved to a marked 

 degree, as attested by the number of arrests and fines. The 

 new law prohibiting the taking of black bass in the Delaware 

 River under 9in. had been very effectually carried out by 

 the wardens; notices and posters have been placed along the 

 liver and the New Jersey wardens have been equally active. 

 Arrests and convictions were made for erecting eel weirs in 

 the Delaware at Port Jervis. 



The special committee referred to on page 2 also reported 

 that the Attorney-Generals of Pennsylvania and New York 

 sustained the decision of the Pennsylvania and New York 

 Commissions that the law applied to the inland waters of 

 that State, and the erection of eel weirs in the Delaware by 

 citizens of New York was therefore illegal. 



It wa3 decided to send a number of letters of inquiry to 

 every county in the State, in an effort to secure information 

 regarding the effect of the extended drought upon fish life in 

 the streams. M. G. Sellers, Sec'y. 



A Michigan Fyke Net Case. 



The observers of the game law in Ottawa county will re- 

 member the case of the People vs. Derimo, which was called 

 up in the Circuit Court some time ago. Frank M. Derimo 

 was at the time accused under Section 5, Act 111, passed in 

 1889, of unlawfully using a fyke net. Prosecuting Attorney 

 Visscher represented the people and Walter I. Lillie appeared 

 for the defendant. The latter, in behalf of his client, plead 

 that the net was set for a legitimate purpose, not of catching 

 fish, but turtles. In the circuit Derimo was convicted, but 

 exceptions were entered and an appeal taken to the Supreme 

 Court. 



Early last month the conviction was set aside and a new 

 trial awarded on the ground that a conviction under this act 

 could not be sustained. It was claimed that the accidental 

 imprisonment of fish in such a net was not sufficient. In 

 this opinion Judges Long and Montgomery concurred with 

 Judge C. J. McGrath. Following is the decision rendered: 



Respondent was convicted under Section 4 of Act No. 3, 

 laws of 1889, which provides that "It shall be unlawful for 

 any person to take or catch any fish at any time with seines, 

 pound nets, gill nets, or any species of nets" in certain 

 waters. * * * "provided, that the use of dip nets in catch- 

 ing mullet, redsides and suckers shall not be unlawful." 

 The complaint alleged that respondent "-'did feloniously and 

 unlawfully, then and there, catch and attempt to take and 

 catch fish with a fyke or hoop net." 



The respondent offered proof tending to show, "That he 

 had made over the nets for the purpose of catching turtles; 

 that the funnel was made large enough so that when fish 

 went into the nets, they could swim out again; that in a fish 

 net proper the funnel was hanging loose, so that there was 

 no opening for the fish to come out; and that these particular 

 nets were made with the opening and with strings tied from 

 the end of the funnel or opening to the main side of the net 

 so that when the net was set as these nets were set, the 

 opening of all the funnels was pulled open thereby, giving 

 the fish plenty of room to swim out after they went into said 

 nets; that all of said nets were so arranged and for the pur- 

 pose of letting fish which swim in to swim out; that the 

 turtles which went in could not get out because of their size 

 and shape, and that all of these nets were hoop nets; that 

 these nets were set differently than nets were set for catching 

 fish; that these nets were, set with pieces of heavy chains at 

 the bottom so that the bottom of the nets would be in the 

 mud, and to catch them the nets had to be on the bottom 

 and were set in about 13 to 15ft. in depth of water; that in 

 setting nets for fish there are no chains on the bottom to hold 

 them in the mud, for the reason that fish do not crawl on the 

 bottom; that the respondent told Hammond (the Deputy 

 Game and Fish Warden), in fche winter before, that he was 

 going to set nets for the purpose of catching turtles, and that 

 said Hammond saw said resipondent set said nets long before 

 the time of taking these nets, and said nothing about it; that 

 the respondent told said Hammond that he, respondent, had 

 caught turtles in said nets before Hammond took them up, 

 and that there were a few Jfish in them, and that respondent 

 put them back in the water unh&rmed." 



It appeared that the nets were drawn by the Deputy Game 

 Warden, and that fish were found therein. 



The trial court refused to give to the jury certain instruc- 

 tions asked for by defendant's counsel, respecting respond- 

 ent's intent and purpose in setting the nets, and instructed 

 the jury as follows: "That the nets that were set there were 

 such nets as would take and catch fish. I say, if you find 

 those to be the facts and beyond reasonable doubt, then this 

 respondent would be guilty of the offense here charged 

 although he may not have drawn the nets himself. If you 

 find that the nets were drawn by this game warden and fish 

 were then and there caught in those nets, and that those 

 nets belonged to and were set by this respondent, then he 

 would be guilty under this act of unlawfully taking or 

 attempting to take or catch fish. The intent with which he 

 set those nets there has nothing to do with the law in this 



case; and if he set them with the intent to catch turtles, and 

 actually did and were well calculated to catch and imprison 

 fish and take fish, and the fish were actually taken at the 

 time, it would be a violatiou of this law." 



This instruction was erroneous. The respondent's testi- 

 mony tended to show that he set the nets for another pur- 

 pose. 



The statute does not prohibit the setting of nets, but the 

 catching or taking of fish from the lake by means of nets. It 

 would be a narrow view to take of the language employed, 

 to say that a fish accidentally imprisoned by the use of a net 

 employed for another purpose, and not one which was shown 

 to be entirely legitimate, was caught within the meaning of 

 the statute. Whether or not the net was set for the purpose 

 of catching fish, was a question for the jury under all the 

 facts and circumstances of the case. 



Judge Hooker dissented, and he was supported in his 

 opinion by Judge Grant as follows: 



The defendant was convicted of the offense of unlawfully 

 taking fish by the use of fyke nets, in contravention of Sec- 

 tion 5 of Act No. Ill, of the Public Acts of 1889. This section 

 provides, "It shall be unlawful for any person or persons to 

 take or catch, or attempt to take or catch, any fish at any 

 time with seines, pound nets, gill nets, or any species of nets 

 in any of the waters of this Sta te," etc. 



The defendant does not deny that he set the nets, or that 

 fish were caught and killed thereby, but says that be did not 

 set these nets from a desire to catch fish, but to catch tur- 

 tles, and that he made no" use of the fish that were caught, 

 but released such as were alive when he took up his net. 



The trial court held that this did not constitute a defense. 



It is admitted that the defendant used a net adapted to 

 and commonly used for the purpose of catching fish. There 

 is every reason to suppose that he knew that it would catch 

 fish, for it had done so to his knowledge. To hold him guilt- 

 less is to say that a man may do those things which will cer- 

 tainly result in the destruction of fish, if he has another ob- 

 ject in view, and will return such fish as he may take, alive 

 or dead, as the case may be, to the water, and not use them, 

 . while his neighbor who desires to keep them is guilty. 



In my opinion a man who sets a net with the knowledge 

 that it will result in the taking and destruction of fish in- 

 tends to take them, notwithstanding the fact that his pri- 

 mary object may be to accomplish another purpose. He 

 wants the turtles, and to get them he is willing to take or 

 catch the fish. This does not show an absence of intent, for 

 it is just as unlawful to take fish that turtles may be caught 

 as to take fish to sell or to eat. 



The right to protect fish by law is within the police power 

 of the State, and there is force in the claim that the act is 

 punishable regardless of the intent. Many cases can be 

 found that hold that convictions may be sustained in the 

 absence of criminal intent, e. g,, the sale of adulterated milk, 

 Commonwealth vs. Farren,9 Allen 469; selling liquor not 

 known to be intoxicating. Commonwealth vs. Boynton, 2 

 Allen, 160; marriage of minors by one honestly supposing 

 them of proper age, Beckham vs. Nacke, 56 Mo.. 246; the kill- 

 ing and sale of a calf under a specified age, though the de- 

 fendant was ignorant of the animal's age, Commonwealth vs. 

 Raymond, 97 Mass., 567; transporting a slaveona steamboat, 

 State vs. Steam. Co., 13 Md., 189. 



These cases and others cited in People vs. Roby, 52 Mich., 

 580, where the subject is discussed, fully justify the doctrine 

 that neglect may be criminal. Here there is not mere neg 

 lect, but a positive expectation of doing the act prohibited, 

 and immunity is expected upon the claim that the defendant 

 designed to catch turtles, and to do so involved the taking of 

 fish, but his indifference as to the fate of the fish relieved him 

 from liability under the law. 



In my opinion, the man who sets a net adapted to the pur- 

 pose and known by him to be likely to catch fish, and which 

 actually does take them, cannot be said to be guiltless. 



FIXTURES. 



BENCH SHOWS. 

 Nov. 26 to 29.— Bridgeport Kennel Club's show, Bridgeport, Conn. 

 E. M. Oldham, Supt. 



1896. 



Feb. 19 to 22.— Westminster Kennel Club's twentieth annual dog 

 show, Madison Square Garden. New York. James Mortimer, Supt. 



March 10 to 13.— Chicago.— Mascoutah Kennel Club's bench show. 

 John L. Lincoln, Sec'y. 



March 17 to 20.— St. Louis Kennel Club's show, St. Louis. W. 

 Hutchinson, Sec'y. 



FIELD TRIALS. 



Nov. 25.— Newton, N. C— U. S. F. T. C. trials. W. B. Stafford, Sec'y. 



Dec. 2.— Owingsville, Ky.— National Fox Hunter's Association Meet. 

 *Harry I. Means, Sec'y. 



Dec. 2 to 4.— High Point, N. C— Irish Setter Club's trials. Geo. H. 

 Thompson, Sec'y. 



1896. 



Jan. 20.— Bakersfleld, Cal.— Pacific Coast Field Trial Club. J. M. 

 Kilgarif, Sec'y. 



Jan. 20.— West Point, Miss.— U. 8. F. T. C. trials. W. B. Stafford, 

 Sec'y. 



Feb. 3.— West Point, Miss.— Southern F. T. 0. seventh annual trials. 

 T. M. Brumby, Sec'y. 



Sept. 2.— Morris, Man.— Manitoba Field Trials Club. John Wootton, 

 Sec'y. 



Canadian Kennel Club. 



A meeting of the executive committee of the Canadian 

 Kennel Club was held Nov. 8. Among the business that 

 came up for discussion was the question of cropping dogs' 

 ears; it was decided to take a vote by mail of the club 

 members on thi3 point. The question of mutual recogni- 

 tion of suspensions was not considered pending further 

 negotiations with the A. K. C. It was also decided that 

 it is in the interest of the club that the publication of 

 registrations for 1895 be in abeyance for the present. 



The president, H, Bedlington, and Geo. B. Sweetnam 

 were appointed a committee to submit a draft of a re- 

 vised constitution and by-laws at the next meeting. A 

 resolution of condolence with Mrs. Alfred Geddes, the 

 widow of a late member of the C. K, 0., was also passed. 



Great Dane Club Prizes. 



New York, Nov. 15.— Editor Forest and Stream: The 

 Great Dane Club of America offers the following special 

 prizes for great Danes, to be competed for at the West- 

 minster Club kennel show, February, 189G, these prizes 

 being open for competition to members of the Great Dane 

 Club of America only, viz.: First, $10 for best in open 

 dog class; second, $5 for second best in open dog class; 

 first, $10 for best in open bitch class; second, $5 for second 

 best in open bitch class; first, $10 for best puppy of either 

 sex shown in any class; second, $5 for second best puppy 

 of either sex shown in any class. 



Clifford Wood, Sec'y. 



The FOREST AND STREAM is put to press each ■week on Tues- 

 •day. Correspondence intended for publication should reach 

 it j at the lattst by Monday, and as much eortwr as practicable 



