Jones v. State

Yellott, J.,

delivered the opinion of the Court.

The plaintiff in error was indicted by the grand jury of Dorchester County and was tried and convicted in the Circuit Court for said county ; the indictment charging a violation of the provisions of the Act of 1886, chapter 206, by unlawfully using a certain boat to .catch oysters with scrapes and dredges in prohibited waters within the territorial limits of said county. The j¡ict of Assembly referred to permits the use of licensed boats, not exceeding ten tons, for taking oysters with scrapes and dredges within certain defined limits, but no vessel of any kind can be used for taking oysters with scrapes and dredges beyond those limits. It renders liable to the penalty any person or persons “ who shall use any boat, canoe or vessel” to take oysters with scrapes or dredges” in that part of Fishing Bay which lies to the northward and eastward of a straight line drawn from tke middle of the mouth of Tedious Creek to Olay Island Lighthouse. The indictment in both counts, alleges that the offence was committed within these prohibited waters.

There was a demurrer to this indictment which was overruled, and the questions raised by the demurrer have been brought into this Court by writ of error. The first assignment of error is that the number of the boat or vessel has not been designated in the indictment. Such designation was unnecessary and would have been mere surplusage, as the provisions of the law are applicable to the use of “any boat, canoe or vessel” for catching oysters with scrapes and dredges within the lipiits named and described in the indictment. The same remark applies to the second assignment of error which is that the indictment does not specify either the name or the number of the said boat or vessel. The name of the vessel is given in the indictment, but as the indictment is against a person, whom the law declares to be guilty if he uses any vessel within the prohibited waters for catching oysters in the manner mentioned, all such description is unnecessary.

The third assignment of error is that the second count does not specify the day or year on which the alleged of-fence was committed. When we examine the indictment we find that the first count charges the commission of the offence on the 29th day of December, 1886, and the second count alleges that he committed the offence on the day and year aforesaid. This was sufficient.

The fourth assignment of error is that the indictment does not describe the vessel as a licensed boat or vessel; and the fifth assignment of error is that the boat or vessel is not described as being of a burden not exceeding ten tons. It is manifest that an accurate description of the vessel was not material, as the use of any boat, canoe or vessel for taking oysters with scrapes and dredges was unlawful within the prohibited waters.

(Decided 16th March, 1888.)

The sixth assignment of error is that the indictment does not show that the defendant was arrested and carried before a justice of the peace, and then did elect to be tried in the Circuit Court for Dorchester County. It is true that the Act of Assembly-gives to justices of the peace jurisdiction dependent upon the election of parties to be tried before them. But the Act gives the Judges of the Circuit Court an original jurisdiction not dependent ou the election of parties, and when a grand jury of the county, whose duty it is to take cognizance of all offences brought to their knowledge, have found an indictment, the Circuit Court is not required to transmit such indictment to some justice of the peace in whose presence the defendant shall elect whether he will be there tried or sent back to the Circuit Court for trial. This extraordinary mode of procedure has not been authorized by any legislative enactment.

There being no perceptible error in any of the rulings of the Court below, its judgment should be affirmed.

Judgment affirmed.