
    STEPHENS v. STATE.
    (No. 4356.)
    (Court of Criminal Appeals of Texas.
    April 4, 1917.
    Dissenting Opinion April 23, 1917.)
    Ftsh <⅜^13(1) — Unlawful FisniNG — Statute — “Pool”—“Water Course.”
    . One who took fish without the consent of the owner from a hole in a creek which sometimes ran in wet seasons and after rains, but which stood in holes and ponds most of the time, is not guilty of unlawfully taking fish from a pool contrary to Vernon’s Ann. Pen. Code 1916, art. 870, since a pool is a small lake of standing water, while a water course consists of bed, banks, and water, but the water need not flow continually (citing Words and Phrases, Water Course).
    [Eid. Note. — For other cases, see Fish, Cent. Dig. § 22.
    For other definitions, see Words and Phrases, First and 'Second Series, Pool.)
    Prendergast, J., dissenting.
    Appeal from Throckmorton County Court; A. H. King, Judge.
    A. Stephens was convicted of unlawfully taking fish, and he appeals.
    Reversed and remanded.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was charged and convicted with unlawfully taking fish.

The charging part of the information is as follows:

“Did then and there unlawfully take, catch, ensnare, and entrap fish by means of nets and seines in a pond beyonding to the Reynolds Cattle Company, a corporation duly incorporated under the laws of the state of Texas, without the consent of the said owner of said pond.”

And by second count it charged as follows :

“Did then and there unlawfully catch, take, ensnare, and entrap fish by means of nets and seines in a pool belonging to the Reynolds Cattle Company, ⅜ * ⅜ without the consent of the owner of such pool.”

Article 810, Vernon’s P. C., forbids any person to take, catch, ensnare, or entrap any fish by means of nets or seines or by muddying, ditching, or draining any lake, pool, or pond in any county of this state without the consent of the owner. It was proved on the trial:

That the appellant took fish by means of a seine without the consent of the owner, and that the fish were taken from the “hole of water in the creek. Paint creek has water in it in holes and ponds most of the time, but it sometimes runs in wet seasons and after rains. Paint creek does not run all the time. It runs in wet seasons. It stands in holes and ponds most of the time.”

There is another statute with reference to fishing ’in streams. It will be noted that the evidence shows that this is a creek which runs at times, and fails to show whether it was running at the time of the alleged offense. A “pool” is defined in Bouvier’s' Law Dictionary, p. 2631, as a small lake of standing water. A “pond” is defined in the same book as a body of stagnant water. A “pond,” as defined by Webster, is a confined or stagnant body of fresh water. “A water course consists of bed, banks, and water. Vet the water need not flow continually. There are many water courses which are sometimes dry. To maintain the right to a water course it must be made to appear that the water usually flows in a certain direction, and by a regular channel, with banks and sides. Chamberlain v. Hemingway, 63 Conn. 1, 27 Atl. 239, 240, 22 L. R. A. 45, 38 Am. St. Rep. 330; Porter v. Armstrong, 129 N. C. 101, 39 S. E. 799, 801; Hill v. Cincinnati, W. & M. R. Co., 109 Ind. 511, 10 N. E. 410; Weis v. City of Madison, 75 Ind. 241, 253, 39 Am. Rep. 135; Tampa Waterworks Co. v. Cline, 37 Fla. 586, 20 South. 780, 784, 33 L. R. A. 376, 53 Am. St. Rep. 262; Simmons v. Winters, 21 Or. 35, 27 Pac. 7, 8, 28 Am. St. Rep. 727; Eulrich v. Richter, 41 Wis. 318, 320; Id., 37 Wis. 226, 229; Barkley v. Wilcox, 86 N. Y. 140, 40 Am. Rep. 519; Hinkle v. Avery, 88 Iowa, 47, 55 N. W. 77, 78, 45 Am. St. Rep. 224; Case v. Hoffman, 84 Wis. 438, 445, 54 N. W. 793, 20 L. R. A. 40, 36 Am. St. Rep. 937: Shields v. Arndt, 4 N. J. Eq. (3 H. W. Green) 234, 235; Jeffers v. Jeffers, 107 N. Y. 650, 14 N. E. 316.” Words and Phrases' (O. S.) p. 7411. In our opinion, the evidence in this case shows that the fish were taken out of a part of a stream or water course, and not out of a pool or pond within the statute.

•The judgment of the lower court is therefore reversed, and the cause remanded.

PRENDERGAST, J.

(dissenting). Webster defines a “pool” to be:

“A small and rather deep collection of (usually) fresh water, as one supplied by a spring, or occurring in tlie course of a stream.”

The Century Dictionary defines a “pool” to be:

“A part of a small stream where the bed suddenly. deepens and broadens, forming a relatively still, deep and wide stretch of water.”

The statute (article 780, P. C.) is:

“Any person who shall take, catch * * ⅜ any fish by means of seines ⅞ * * in any lake, pool, or pond * * * without the consent of the owner of such lake, pool, or pond, shall be” punished, etc.

There can be no question but that the Legislature meant and intended by “pool” in this statute just exactly the body of water defined by the lexicographers above quoted. In fact, every one in this country knows that a pool means a body of water occurring in a creek or stream, whether the water be running or not. The uncontradicted evidence shows appellant caught fish with a seine out of a hole of water — pool—in Paint creek, without the owner’s consent. This was exactly what the law said should be punished. The law was intended to protect the owner of the fish on his own premises. The evidence does not show the fish were taken out of a stream, or water course, as contradis-tinguished from a pool therein, but out of a pool in a creek.

The judgment should be affirmed, not reversed. I dissent. 
      g=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     