State v. Biggs ( 1934 )

Per Cuktam.

The defendants were convicted in a recorder’s court under the Fish and Game law of fishing without a license, and appealed to the Common Pleas, where the conviction was reversed, and the state, through its fish warden, sued out this writ of certiorari.

The defense in the Pleas, the appeal being a trial de novo, was that the water in which defendants were fishing was a privately owned pond, in which they were fishing by permit from the owners, and that for such fishing no license is required. Comp. Stat., p. 2514, pl. 50; Pamph. L. 1003, p. 535. The prosecution maintained, however, that the pond was also a “runway for migratory fish,” and that for this reason it was not “private waters,” and a license was required. Ibid. Evidence was fully presented on the question whether the pond was in fact a runway for migratory fish, and the Court of Common Pleas decided as a question of fact that it was not, and consequently ordered an acquittal.

The question, as we have said, was one of fact, and the finding by the trial court that the pond was not a runway for migratory fish was amply supported by the evidence. We see no reason whatever to question the propriety of that finding, even assuming it to be within our province to review it on the evidence.

The judgment is affirmed.