In Re Vitalie

California Court of Appeal Oct 19, 1931 No. Docket No. 1174.Published

Before: Thompson

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Holding. The court held that Penal Code section 628a is constitutional and not ambiguous, as the legislature has the authority to regulate fishing and the statute's restrictions are reasonable. The petitioner's claim regarding the accidental catching of bass is a matter of defense to be addressed at trial rather than a jurisdictional issue for habeas corpus.

Issues

Is Penal Code section 628a unconstitutional or ambiguous due to its restrictions on catching striped bass with nets?
Does the inability to prevent bass from entering a shad net render the statute unconstitutional?
Is the petitioner entitled to discharge via habeas corpus based on defenses regarding the accidental nature of the catch?

Disposition. remanded

Quotations verified verbatim against the opinion

“Section 628a of the Penal Code is not ambiguous or unconstitutional”

“The fact that one may be unable to prevent bass from entering his net when he is lawfully seining for shad, does not render the law unreasonable or unconstitutional.”

THOMPSON (R. L.), J.

This is a petition for a writ of

habeas corpus.

The petitioner is charged by a complaint filed in Montezuma township, Solano County, with the misdemeanor of catching striped bass by means of a net, in violation of section 628a of the Penal Code as amended in 1931. The complaint contains the following charge: “That said Prank Vitalie ... on or about the 30th day of August, A. D. 1931, at and in Sacramento River, in the said County of Solano, did then and there wilfully and unlawfully take and catch and kill striped bass other than with hook and line and in the manner commonly known as angling and did further then and there wilfully and unlawfully take, catch and kill more than five striped bass during said day.”

Upon this charge the ■ petitioner was taken into custody by the sheriff and is restrained of his liberty. The case has

[556]

not been tried. This petition for a writ of

habeas corpus

was then instituted.

The petitioner claims he is entitled to be discharged from custody for the reason that the court is without jurisdiction to try the cause on the ground that section 628a, supra, is ambiguous and unconstitutional, since, (1) it prohibits the catching of striped bass with a net, but authorizes the taking of shad by that same means, whereas a fisherman is unable to prevent bass from entering his net while he is lawfully seining for shad; (2) it absolutely prohibits the catching of bass with a net, but authorizes the sale of bass under certain specified conditions.

It appears the petitioner was engaged on August 30, 1931, in fishing for shad, with a lawful net, in open season therefor, at the mouth of Broad slough in Solano County, in Fish and Game District Number 12b. He was apprehended and arrested by the game warden for unlawfully catching striped bass. When his net was drawn in the presence of the game warden it was found to contain forty striped bass, together with some shad.

The first paragraph of section 628a of the Penal Code relates to the marketing of striped bass. It prohibits the buying or selling of bass between May 1st and July 31st, of any year. It prohibits the marketing at any time of bass which are less than twenty inches in length.

In Re Vitalie

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THOMPSON (R. L.), J.

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