
    Commonwealth v. Ide.
    
      H. G. Teel, Assistant District Attorney, for Commonwealth.
    
      A. W. Day, for Department of Justice; B. S. Hemingway, for defendant.
    Dec. 4, 1929.
   Evans, P. J.,

— The record is fatally defective in this summary proceeding; however, we will decide the case on the merits.

Oct. 16, 1929, M. E. Shoemaker, a State fish warden, lodged an information before George A. Zeigler, a justice of the peace in the Town of Bloomsburg, charging the defendant, M. M. Ide, with the violation of sections 200, 201, 202 and 203 of the Act of May 2, 1925, P. L. 448, as amended by the Act of April 22,1929’, P. L. 621, in that he did, on July 11, 1929', wilfully, maliciously and unlawfully permit and allow certain substances of a kind and character deleterious, destructive and poisonous to fish, to wit, copper sulphate, to be turned into and allowed to run, flow, wash and be emptied into the Fishing Creek, inhabited by fish, in the Township of Benton, in this county.

Warrant issued the same day and the defendant was arrested and hearing had before the said justice. The justice’s record reads thus: “After hearing, defendant fined $100.00 and costs, or one (1) day in the Columbia County Jail for each dollar of fine imposed.”

Oct. 21, 1929, for cause shown, the defendant was allowed to appeal.

The proceeding came on for hearing before the court de novo Nov. 26, 1929. The testimony taken before the court shows that an accident happened on July 11, 1929, on the farm of the defendant in Benton Township in this county. He was engaged in spraying potatoes, using a six-row power sprayer propelled by horses. The material used was copper sulphate, lime and water. He prepared the spraying mixture on the bank of the creek some fifteen feet from the water’s edge. While the motor on his sprayer was being cranked, one of his horses suddenly became unruly and backed the sprayer against one of the barrels containing the spraying mixture and upset the same, and some of the spraying liquid — less than a half-barrel — ran out and down the bank into the creek. The water in the creek being low, sufficient of the copper sulphate-lime mixture got into the stream and killed several hundred trout. It was an unfortunate accident, one of those accidents which occasionally happen for which no one is responsible. The upsetting of the barrel and spilling of the spraying mixture was a loss to the defendant.

The Fishingcreek Sportsmen’s Association, within less than twenty-four hours after the accident happened, made a thorough investigation of the killing of the trout. Messrs. R. W. Rabb, Alvin Sutliff, M. D. Pennington and D. E. Hartman, members of the said association, testified that from their investigation they were satisfied that the copper sulphate mixture accidentally got into the stream and killed the trout.

The defendant, Ide, is an ardent sportsman himself and a member of the Fishingcreek Sportsmen’s Association.

Immediately after the accident happened, Mr. Ide sunk the barrels used in mixing the spraying material in the ground to such a depth that a like accident could not happen again.

Notwithstanding the fact that the record in this case is fatally defective, it should be reversed and set aside on the merits. The record shows neither a conviction of the defendant of the offense charged nor an entry of judgment against him, but after hearing had, just imposes a fine of $100.

And now, Dee. 4,1929, the appeal is sustained and the proceeding is reversed and set aside and the defendant discharged from his recognizance, the county to pay the legal record costs.

From B. S. Hemingway, Bloomsburg, Pa.  