
    The People of the State of New York, Respondents, v. Stanley H. Lowndes, Appellant.
    Under the provision of the Penal Code (§ 441), declaring that a non-resident-who “ plants oysters in the waters of this state, without the consent óf the owner of the same, or of the shore, or gathers oysters * * * in any such waters on his own account or for his own benefit or the benefit of a non-resident employer,” shall be guilty of a misdemeanor, the concluding clause beginning “on his own account,” applies alike to each-of the two offenses created by the act, i. e., to the planting as well as-the gathering of oysters.
    Where an indictment under said provision charged that defendant at a-time specified, he then being anon-resident, planted oysters in waters of the state without the consent of the owners, but omitted to aver that-this was done for his own benefit or the benefit of a non-resident employer,. held, that the indictment failed to state facts constituting an offense;, and that a demurrer thereto on that ground was improperly overruled.. It seems the legislature has power to discriminate - between residents and non-residents in favor of the former, in regard to its waters, the common property of the people of the state.
    
      People v. Lowndes (55 Hun, 469), reversed.
    (Argued December 17, 1891;
    decided January 20, 1892.)
    Appeal from judgment of the General Term of the Supreme-Court in the second judicial department, entered upon an order1 made February 10, 1890, which affirmed a judgment entered upon a verdict of the Court ©f Sessions of the county of Suffolk, convicting the defendant of a misdemeanor in violating the provisions of section 441 of the Penal Code.
    The facts, so far as material, are stated in the opinion.
    
      
      James C. Canter for appellant.
    Huntington bay is an inseparable part of Long Island sound, and is, therefore, outside of the boundaries of the patent to the town. (Robbins v. Ackerly, 91 N. Y. 98.) The effort of the prosecution to prove title by the cession of 1888 was wholly ineffectual. (Laws of 1888, chaps. 279, 494; Charles River Bridge v. Warren Bridge, 11 Pet. 421; Martin v. Waddell, 16 id. 369; Rice v. R. R. Co., 1 Black, 359; Fertilizing Co. v. Hyde Park, 97 U. S. 659; Lansing v. Smith, 4 Wend. 9; Chenango Bridge v. Binghampton Bridge, 27 N. Y. 87; 3 Wall. 51.) The words in the statute, “waters of this state,” are to be interpreted not as meaning only waters belonging to this state, if indeed they are to be taken as including such waters, but as embracing waters of this state belonging to persons or corporations other than the state. (McCready v. Virginia, 94 U. S. 391.) The indictment is framed upon the assumption that the qualifying words “ on his own account, or for his own benefit, or for the benefit of a non-resident employer,” are attached only to the second offense created by the act, namely, “the gathering of oysters from their beds of natural growth,” and not the first, namely, that of planting oysters. This interpretation is plainly erroneous. (Const. art. 4, § 2; Corfield v. Coryell, 4 Wash. [C. C.] 371; Slaughter Mouse Cases, 16 Wall. 37; U. S. v. Cruikshank, 92 U. S. 542, 557; U. S. v. Carll, 105 id. 611; Eckhardt v. People, 83 N. Y. 462; People v. Allen, 5 Den. 76; People v. Gates, 13 Wend. 311; People v. Clements, 42 Hun, 353; 107 N. Y. 205; People v. Monteverde, 43 Hun, 447.) The statute in ■question is a part of the criminal law of the state, founded upon the policy of repressing willful trespasses, and applicable only to such cases. (People v. Stevens, 109 N. Y. 159.) The whole of section 441 of the Penal Code, and every part of it, upon the interpretation of the prosecution, is invalid as a violation of the Federal Constitution. (Const. U. S. art. 4, § 2; Slaughter Mouse Cases, 16 Wall. 77; Paul v. Virginia, 8 id. 180; Santa Clara Co. v. Southern Pac. Co., 118 U. S. 384; In re Parrott, 1 Fed. Rep. 481; In re Ah Chong, 2 id. 733.)
    
      
      Martin J. Keough for appellant.
    The indictment does not state facts sufficient to constitute a crime. (Penal Code, § 441; People v. Clements, 42 Hun, 353; People v. Monteverde, 43 id. 447; People v. Gates, 13 Wend. 311; People v. Miller, 2 Park. Crim. Rep. 187.) Under this indictment for planting oysters in the waters of this state without the consent of the owner of the same, the intent is a material element of the offense, and the court erred in excluding evidence that he planted the oysters under a bona fide claim of right, which he might have reasonably believed entitled him to do so. (People v. Stevens, 109 N. Y. 159; Bayliss v. Cockroft, 81 id. 363; McKown v. Hunter, 30 id. 625; Thurston v. Cornell, 38 id. 281; Bedell v. Chase, 34 id. 386.) The court below erred in refusing to charge as requested, that if the jury have any reasonable doubt as to whether this land (the locus in quo where the planting was done) is within or without the patent, they must give the defendant the benefit of the doubt and acquit, and also in charging that if the jury believe Huntington bay is within the patent limits of the town of Huntington, defendant has shown no defense. (Robbins v. Ackerly, 91 N. Y. 98; Brookhaven v. Strong, 60 id. 56; Laws of 1888, chap. 279.) The court erred in refusing to charge that if the defendant and those under whom he claimed had the exclusive use and occupation of these grounds for upwards of twenty years, that they kept them distinctly staked out; that no natural oysters were growing upon them; that they used them in hostility to the claim of the town and all "other persons; that then, in July, 1888, the defendant, and those under whom he claimed, had a prescriptive right to the use of the ground, and were entitled thereto. (McCarty v. Holeman, 10 Wkly. Dig. 501; Decker v. Fisher, 4 Barb. 492; Lowndes v. Dickerson, 34 id. 586.)
    
      Charles B. Street for respondent.
    The colonial grants to the trustees of the town of Huntington were valid grants, and vested title in them, including lands under tide water and an exclusive fishery therein. (1 R. S. [8th ed.] 44, 58, 64, 84, 879, 881, 885, 900, 1039; Brookhaven v. Strong, 60 N. Y. 72.) The colonial grants take in the premises where the oysters were planted. (Rogers v. Jones, 1 Wend. 238; Brookhaven v. Strong, 60 N. Y. 72; Hand v. Newton, 92 id. 89; Robbins v. Ackerly, 91 id. 98; Town of Hempstead v. Thompson, 115 id. 635; Town of Huntington v. Lowndes, 40 Fed. Rep. 565.) John H. Lowndes, the employer of the defendant, acquired no title to the premises by adverse possession. (Code Civ. Pro. § 362; Ogden v. Jennings, 66 Barb. 308; Colvin v. Burnett, 17 Wend. 564; Howard v. Howard, 17 Barb. 663; Livingston v. P. I. Co., 9 Wend. 511; Robinson v. Kime, 70 N. Y. 152; Bliss v. Johnson, 94 id. 235; Smith v. Burtis, 9 Johns. 174, 180; Jackson v. Johnson, 5 Cow. 74; Jackson v. Frost, Id. 346; Hoyt v. Dillon, 19 Barb. 651; Doe v. Thompson, 5 Cow. 371; Thomson v. Burhans, 9 Hun, 1; 79 N. Y. 99; Higenbotham v. Stoddard, 72 id. 94.) FTeither defendant nor his father John H. Lowndes acquired any easement in the premise's. (Ward v. Warren, 82 N. Y. 265; Nichols v. Wentworth, 100 id. 455; Munson v. Reid, 46 Hun, 399; Thomas v. Marsfield, 13 Pick. 240; Kellogg v. Thomson, 66 N. Y. 88; Burbank v. Fay, 65 id. 57; Thayer v. N B. R. R. Co., 125 Mass. 253; Dodge v. McClintock, 47 N. H. 387; Polly v. McCall, 37 Ala. 20; Slater v. Jepherson, 6 Cush. 129; Parker v. Parker, 1 Allen, 245; Colvin v. Hollis, 3. Met. 128; Wheeler v. Spinola, 54 N. Y. 387; Roberts v. Baumgarten, 19 J. & S. 482; Parker v. Wallis, 60 Md. 15; Townsend v. Rieves, 44 N. J. L. 525; Brookhaven v. Strong, 60 N. Y. 72; Robbins v. Ackerley, 91 id. 98.) The legal title to Huntington bay being in the trustees of the town, for the benefit of the inhabitants, under its colonial grants, and they having an exclusive right of fishery therein, any resident of the town might go upon the waters and take floating fish or shell fish of natural growth, but even a resident of the town could not reduce to his exclusive possession a particular part of the common lands and exclude all other residents from its enjoyment without the consent of the trustees. Such a person would acquire no rights as against the trustees by such occupation. 
      (People v. M. B. R. R. Co., 84 N. Y. 568; Laws of 1188, chap. 64, §§ 15, 16; 2 R. S. [8th ed.] 811.) If the premises are not within the limits of the colonial grants to the town of Huntington, they belonged to the state of Hew York at the date of the Ceding Act, in 1888. (Polard v. Hagan, 3 How. Pr. 212; Wilber v. Harbor, 18 Wall. 51; Goodlittle v. Kibbe, 9 How. Pr. 411; Doe v. Beebe, 13 id. 25; McCready v. Virginia, 94 U. S. 391; Laws of 1880, chap. 213.) The Ceding Act, relied on by defendant, furnishes no defense. (Fleet v. Hegeman, 14 Wend. 41; Post v. Kriesher, 16 Abb. [N. C.] 38.) The non-residence of the defendant and of John H. Lowndes, under whom he claims the right to plant, is fatal to the defense. (Smith v. State of Maryland, 18 How. [U. S.] 71; McCready v. State of Virginia, 94 U. S. 391; Laws of 1811, chap. 211; Laws of 1881, chap. 584, §§ 4, 9; Laws of 1849, chap. 194, § 4; Laws of 1815, chap. 482, § 1; Const. N. Y. art. 3, §.23.) The defendant’s claim that the statute states no crime, is erroneous. (Laws of 1859, chap. 468 ; Laws of 1880, chap. 453 ; Laws of 1863, chap. 493, § 1; Laws of 1865, chap. 343 ; Laws of 1866, chap. 306, § 1, 404; Laws of 1810, chap. 234; Laws of 1811, chap. 639 ; Laws of 1812, chap. 661; McCready v. State of Virginia, 94 U. S. 391.) The indictment states facts sufficient to constitute an offense against the criminal law. (Penal Code, §§ 385, 441; Code Crim. Pro. §§ 283-286, 542; Pontius v. People, 82 N. Y. 339; People v. Conroy, 91 id. 62; People v. King, 110 id. 418.) The question of the intent of the defendant to commit a crime was properly excluded. (People v. Kibler, 106 N. Y. 321; People v. Schaeffer, 41 Hun, 25; People v. Mahaney, Id. 28; United States v. Adams, 2 Dak. 309.) Section 441 of the Penal Code of this state is not unconstitutional under article 4, section 2, of the Federal Constitution. (Gould on Waters, chap. 1, 2; Cornfield v. Coryell, 4 Wash. C. C. 371; Smith v. Maryland, 18 How. [U. S.] 71; McCready v. Virginia, 94 U. S. 391; Manchester v. Massachusetts, 139 id. 259, 260; Sherlock v. Alling, 93 U. S. 99; Brookhaven v. Strong, 60 N. Y. 56; Robbins v. Ackerly, 91 id. 98; Town of Huntington v. Lowndes, 40 Fed. Rep. 565; Rogers, v. Jones, 1 Wend. 251; People v. Lemmon, 20 N. Y. 562; Hallick v. Dominy, 69 id. 238; 34 N. J. L. 532; Borden v. Crocker, 10 Pick. 383; Paul v. Haselton, 37 N. J. L. 106, 163; Nickerson v. Bracket, 10 Mass. 213; Russell v. Russell, 15 Gray, 161; Weston v. Sampson, 8 Cush. 347; 25 Gratt, 786; Averill v. Hull, 37 Conn. 321; Gullup v. Tracy, 25 id. 10; 110 U. S. 421; 9 Wheat. 1; 1 id. 304; 12 Pet. 657; 4 Wheat. 121; Delaney v. Britt, 51 N. Y. 78; People v. Hazen, 121 id. 313.)
   Bradley, J.

. The purpose of the indictment against the defendant was to charge him with the violation of the statute, which provides that a person who, not being at the time an actual inhabitant or resident of this state, plants oysters in the waters of this state, without the consent of the owner of the same, or of the shore, or gathers oysters or other shell-iish from their beds of natural growth, in any such waters on his own account, or for his own benefit, or the benefit of a non-resident employer, is guilty of a misdemeanor, punishable by imprisonment not exceeding six months, or by fine not exceeding one hundred dollars, or both.” And the indictment was that “ the ■said Stanley H. Lowndes, then not being an actual inhabitant and resident of the state of FTew York, at the town of Huntington in the county of Suffolk aforesaid, on the 14th day of July, 1888, willfully and wrongfully planted oysters in the waters of Huntington bay in said town and county without the consent of the owners of the same, to wit: The board of trustees of the towm of Huntington, against the form of the statute in such case made and provided, and against the peace of the people of the state of Flew York and their dignity.” The defendant demurred to the indictment on the ground that it failed to state facts sufficient to constitute an offense against the criminal law. Tile demurrer was overruled and exception taken. The defendant thereupon entered his plea of not guilty. And the trial resulted in his conviction.

It appeared by the evidence that in July, 1888, the defendant was engaged in planting oysters in Huntington bay ; that he was then a resident of the state of Connecticut; and that he was doing this work as the employe of his father John Lowndes, also a resident of that state, who twenty years before had staked out the grounds and buoyed them off at the place, in question in the bay, and thereafter had been engaged in planting natural oysters and gathering the cultivated oysters there.

In the view of the trial court the only question of fact was whether the place where the oysters were planted by the defendant was within the town of Huntington ; and that was. dependent upon the northern boundary of" the reyal patent, from the crown made by Richard Hicholls, governor-general, etc., Hovember 30,1666, to the freeholders and inhabitants of the town of Huntington, confirmed by the charter of Thomas; Dongan, captain-general and governor-in-chief of Hew York,, etc., August 2, 1688, and by Benjamin Fletcher, captain-general and governor-in-chief, etc., October 5, 1694. Those colonial patents or grants bounded the land embraced within them on the north by the sound, that is what is known as Long-Island sound. The bay was an open one widening to the north; and it is claimed on the part of the defense that the-bay is within the sound; and that the determination by the. court that Horthport bay was within thé limits of the royal patent has no essential application here because that was a landlocked harbor. (Brookhaven v. Strong, 60 N. Y. 72; Robins v. Ackerly, 91 id. 98.) If the locus in quo was not within the colonial patent or grant it was the property of the state, and passed to the trustees of the town of Huntington by the legislative act of cession of Hay, preceding the time of the alleged offense. (L. 1888, ch. 2J9.) The view taken of the case renders it unnecessary to consider the question of the northern boundary of the.premises embraced in the patent, or the-effect upon the rights of John Lowndes of the act of cession of 1888. Hor is it necessary to inquire whether any other question of fact bearing upon the intent of the defendant should have been submitted to the jury as urged by the defendant’s counsel. The case may be disposed of upon the exception taken to the ruling upon the demurrer.

The statute was passed with the view to discrimination between those persons who were and those who were not residents of the state, and in favor of the former to the exclusion of the latter for the purpose of planting and gathering oysters in its waters. This, to that extent, is a lawful exercise of legislative power over the common property of the citizens of the state. (McCready v. Virginia, 94 U. S. 391.)

The statute created two offenses. One for planting oysters in the waters of the state, and the other for gathering oysters ■and other shell-fish from their natural beds in any such waters. The words without the consent of the owner of the same, or of the shore, include the owners, whoever they may be, and are applied to the person planting who is not then an actual inhabitant or resident of the state. If this is all that is essential to the offense and all that is made requisite by the statute the indictment was sufficient.

But it is quite evident that such is not the construction intended, or to which the statute is entitled. The subsequent words, on his own account or for his own benefit, or the benefit of a non-resident employer,” are applicable alike to both offenses. It may be that a different legislative intent may have been applied to the interpretation of the section, if reference to a person not being an inhabitant and resident of the state had by express repetition been made applicable to the offense of gathering oysters, etc.; but the words “ on his own account,” etc., relate back to the person first and only mentioned at the opening of the section. And while those words are more closely in position connected with the statement of the second offense than with the other, it seems clear that they were intended to be attached and made essential to the offense first mentioned in the section. It is quite difficult to see that it was intended to so discriminate between the offenses as not to make that of gathering oysters from their natural beds a criminal offense unless done by a non-resident on his own account or for his own benefit, or the benefit of a non-resident employer, and not to make those conditions requisite to the ofíense of planting oysters. The other view of the provisions of the section and that upon which the indictment was framed, might lead to the inquiry whether the provisions purporting to create the ofíense of planting contain all the requisites of a criminal ofíense. They certainly might be construed to impute a crime to a person not chargeable with the ofíense. The owner mentioned in the statute refers to the owner of the waters of the state, and this means waters within the state by whomsoever owned. A person not having the title may have the right to plant oysters in such waters. He may take it by license; and he may employ a person not an inhabitant and resident of this state to plant oysters there. And the privilege of a citizen of any one of the United States, no less than that of a citizen of this state, to accept lawful employment and perform service within it, has the constitutional guaranty that “the citizens of each state shall be entitled to all the privileges and -immunities of citizens of the several states.” (U. S. Const, art. 4, § 2; Slaughter House Cases, 16 Wall, 77.)

But the construction given to the statute in question renders it unnecessary to pursue further the subject of constitutional guaranty, or to seek to apply it to the present case. And as an essential element of the statutory ofíense of planting oysters by a non-resident, is that it be done on account or for the benefit of the person doing it, or for the benefit of a non-resident employer; the failure to charge that fact in the indictment was a substantial omission. And the rule which requires for its support when challenged, that all ingredients essential to the ofíense be alleged, renders the indictment fatally defective. (People v. Gates, 13 Wend. 311; People v. Allen, 5 Denio, 76; Eckhardt v. People, 83 N. Y. 462; U. S. v. Carll, 105 U. S. 611.)

While the words used in a statute to define a crime need not be strictly pursued in the indictment, words conveying the meaning of those employed by the statute to express the ingredients of the ofíense may be used. (Code Cr. Pro. § 283.) Imperfections in matter of form may be disregarded (Id. '§ 285), but the substance of all that is requisite to the offense must be alleged. (Pontius v. People, 82 N. Y. 339; People v. King, 110 id. 418; People v. Clements, 107 id. 205.)

The question here is not one of form or particularity of statement of the matters essential to the crime, but of entire failure to allege them in any manner. It is urged that because the two offenses mentioned in section 441 of the Penal Code had separate sources in prior statutes (Laws 1866, chap. 404, § 6; Laws 1879, chap. 87), the provisions should havq the construction that they were there severally entitled to. But it may be observed that the provisions of that section of the Laws of 1866, embracing both of the offenses, materially differ in structure from those in the statute under consideration. And the other prior statute referred to, amendatory of Laws 1878 (Chap. 302), had relation only to raking or gathering of oysters and other shell fish by non-residents of the state on . their own account and for their own benefit, or on account or" for the benefit of non-resident employers, and was not confined to taking them from their beds of natural growth. That statute could not have been effectual to deny to the owner, although a non-resident, the right of taking his oysters from the waters of the state, if he owned any which he had planted there. (People v. Hazen, 121 N. Y. 313.) In the case last cited the constitutional question raised was not considered, nor was it necessary to do so for the purposes of the result reached. We fail to find anything in the prior statutes before mentioned to legitimately indicate a legislative intent in support of the construction of the present statute contended for on the part of the prosecution. And the view here taken of its construction leads to the conclusion that the judgment should be reversed and the defendant discharged.

All concur.

Judgment reversed.  