
    236 F. 109
    THLINKET PACKING CO. v. UNITED STATES.
    No. 2623.
    Circuit Court of Appeals, Ninth Circuit.
    Sept. 5, 1916.
    
      M. G.' Munly and Robert N. Munly, both of Portland, Or., and Winn & Burton, of Juneau, Alaska, for plaintiff in error.
    James A. Smiser, U. S. Atty., and John J. Reagan, Asst. U. S. Atty., both of Juneau, Alaska.
    Before GILBERT, ROSS, and HUNT, Circuit Judges.
   GILBERT, Circuit Judge

(after stating the facts as above).

Error is assigned to the order.overruling the demurrer of the plaintiff in error to the • indictment, which was interposed on the grounds: First, that more than one offense is attempted to be charged therein; and, second, that no.offense against the United States is charged. As to the ground of demurrer that more than one crime is charged in each indictment, it is sufficient to point to the statute of the territory of Alaska, approved April 26, 1913, providing that when there are several charges against any person for the same act or transaction, or for two or more acts of the same class of crimes, the whole may be joined in one indictment in separate counts. Session Laws of Alaska 1913, p. 65. The second ground of demurrer is based on the fact that the indictment contains no averment that the plaintiff in error was actually fishing or catching fish, also upon the contention that the provision of section 5 in regard to requiring that 25 feet' of the webbing or net of the heart of traps shall be lifted or lowered so as to permit the free passage of salmon and other fishes is directory only, and disobedience thereto is not made a crime by the act. It is true there is no express provision in the statute which declares that it shall be unlawful to operate a trap unless the net is lifted or lowered in the manner prescribed therein; but section 5 distinctly provides that 25 feet of the webbing or net of the heart of each trap on each side of the pot shall be lifted or lowered so as to permit the free passage of fish, and section 13 provides that any one who violates any provision of the act or any regulation established in pursuance thereof shall, upon conviction, be punished. In other words, there is a plain command of the statute and a plain provision that disobedience thereto is punishable. Such a statute is not directory only. Nor was it necessary to allege, further than was charged in the indictment, that the plaintiff in error was actually fishing or taking fish. It was sufficient to allege that it “did unlawfully and wrongfully maintain and operate for fishing a certain trap.” If the plaintiff in error was engaged in any kind of fishing, and operated traps therefor, it makes no difference whether it was seeking to take salmon or other fish, for the trap in either case constituted the obstruction to the passage of fish which it was the object of the statute to prevent. We hold that the indictments were sufficient.

Error is assigned to the denial of the motion of the plaintiff in error, made at the close of the testimony for the prosecution, either that the jury be directed to bring in a verdict for the plaintiff in error, or that the proceeding be dismissed for want of evidence to establish any of the counts in the indictments. The motion repeated the objections to the indictments that were presented in the demurrers. Other grounds of the motion were that there was no evidence to establish the charges, that it was not alleged in the indictments that the localities where the fishing was done were not in places which were excepted from the operation of the statute, or that the fishing was not done by the means excepted in the statute — that is, by rod, spear, or gaff — and that there was no evidence to show that the plaintiff in error did not open its traps sufficiently to allow -the passage of salmon and thereby comply with the spirit of the statute. As to the questions of fact which were presented as ground for the motion, it is sufficient to say that they were waived by the act of the plaintiff in error in thereafter proceeding to offer its testimony in defense, and by failing to renew the motion at the close of the trial. Gould v. United States, 209 F. 730, 126 C.C.A. 454; Sandals v. United States, 213 F. 569, 130 C.C.A. 149; Stearns v. United States, 152 F. 900, 82 C.C.A. 48.

The objection that the indictments do not negative the exceptions contained in the statute and show that the fishing was not done in the excepted waters, viz. Cook Inlet, the delta of Copper river, and Bering Sea, is sufficiently answered by the language of the indictments which charges that the traps were maintained “in the waters of Icy Straits near the mainland,” and then followed descriptions of the location of each trap with reference to certain named islands, so that it can be clearly seen that the locations of the traps were within the prohibited waters. And if, indeed, the fishing which was done by the plaintiff in error was done with rod, spear, or gaff, it does not follow therefrom that the plaintiff in error was not maintaining and operating traps equipped with nets which it failed to raise or lower in violation of section 5 of the act.

Error is assigned to the refusal of the court to grant certain requested instructions. The instructions which were refused differ in no material respect from the instructions given, except that the court refused to charge that the statute does not mean that 25 feet of the net must be lifted or lowered vertically, but that it is sufficient if 25 feet of the web is lifted or lowered in a Y-shape, and in such a manner as to permit the free passage of salmon and other fishes. In this connection, exception was taken also to the illustration used by the court in charging the jury, in which he compared the raising and lowering of the net as required by the statute to the raising and lowering of a .window sash. We are not convinced that the construction given by the court to the language of the statute was erroneous,. Section 5 plainly provides that 25 feet of the webbing or net of the heart of such traps on each side of the pot shall be lifted or lowered in such manner as to permit the free passage of salmon and other fishes. If the statute had said no more than that the webbing of the net shall be lifted or lowered in such manner as to permit the free passage of salmon, it might be held that the command would be complied with by lowering the net to make a Y-shaped opening, provided that such an opening permitted the free passage of fish. But the statute enacts that the 25 feet of the net shall be lifted or lowered, which plainly means that a section 25 feet in length of the body of the net shall be raised or lowered. Such being the language of the statute, the court below did not err in denying the requested instructions of in using the illustration which is objected to.

The jury evidently believed that the plaintiff in error by lowering the net in a V-shape had complied with the spirit, but not with the letter, of the law; for, when their verdict had been returned, the foreman asked the court if it were possible to modify the same, and said that the jury thought that, while the defendant had violated the letter of the law, it had not violated the spirit of it. Thereupon the jury obtained the permission of the court to insert in the verdict a recommendation to the clemency of the court. The plaintiff in error contends that, by virtue of the colloquy which attended the handing in of the verdict, it should be held that the jury found a special verdict which is contrary to and should control the general verdict. The verdict of the jury as filed was that they found the defendant “guilty as charged in the indictment with a recommendation for clemency.” What they said in open court may be taken as the expression of their opinion that the plaintiff in error, while violating the statute, had nevertheless so lifted or lowered its nets as to permit the free passage of fish during the closed hours. But in statutes such as this, enacted for the protection of fish, it is the letter of the law rather than its spirit which all fishermen are called upon to obey. The fisherman is not allowed to offer a 'substitute or to adopt a means of protection which he thinks is just as good. If the legislative body makes no exception to a clear declaration of its will, the presumption is conclusive that it intended none. United States v. Missouri Pac. Ry. Co., 213 F. 173, 130 C.C.A. 5. Where the offense is malum prohibitum, the doing of the inhibited act constitutes the crime. The only fact to be determined by the jury is whether the accused did the act. No evil intent is essential to constitute the offense. A simple purpose to do the forbidden act is sufficient. Armour Packing Co. v. United States, 153 F. 1, 82 C.C.A. 135, 14 L.R.A.(N.S.) 400.

We find no error.

The judgment is affirmed.  