In Re Berto

California Supreme Court Apr 11, 1925 No. Docket No. Crim. 2736.Published

Before: Seawell

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Holding. The court held that a criminal complaint charging the use of a beach-net in violation of the Penal Code is sufficient if it follows the language of the statute, as the statute's definition of a beach-net inherently includes the prohibited act of using it to catch fish.

Issues

Whether a criminal complaint for the unlawful use of a beach-net is insufficient for failing to explicitly allege the net was used for the purpose of catching fish.
Whether a complaint drafted in the language of the statute is sufficient to state a public offense under Penal Code section 636.

Disposition. Writ discharged and petitioner remanded.

Quotations verified verbatim against the opinion

“The complaint in the instant case is in the language of the statute. This is sufficient”

“A net becomes a beach-net only when it is being hauled from the water to the beach or shore for the purpose of catching fish.”

“The complaint upon its face is a sufficient pleading.”

SEAWELL, J.

The petitioner was charged by a complaint filed against him in the justice’s court of the third township of the county of San Mateo, this state, on September 17, 1924, with the violation of subdivision 6 of section 636 of the Penal Code. In material allegations the complaint is as follows: “That on or about the 14th day of August, A. D. 1924, in the County of San Mateo, State of California, the crime • of misdemeanor was committed by A. Berto, who did then and there use within said county and in Fish and Game District number 13, a certain beach-seine, contrary to the form, force and effect of the statute in such case made and provided, and against the peace and dignity of the people of the State of California. And this complainant, upon oath, accused the said A. Berto of having committed the said offense and prays that the said accused may be brought before a magistrate and dealt with according to law,” etc. By section 636 of the Penal Code it is made a misdemeanor for any person to use or operate any net, trap, line, etc., for the purpose of taking fish in the state of California at any time, or in any manner, except as otherwise provided by part 1, title 15, chapter 1, of the Penal Code.

The subdivisions of section 636 of the Penal 'Code essential to an understanding of the case are as follows:

“Sec. 6. Beach-nets. It shall be lawful to use beach-nets (also known as beach-seines or haul-seines) in fish and game districts five," eight, nine, ten, eleven, eighteen, nineteen and twenty-two; provided that in fish "and game district five the meshes of any such beach-nets shall measure not less than five and one-half inches in length and that in fish and game districts ten, eighteen' and nineteen the meshes of the beach-nets shall measure not less than one and one-half inches in length;

[776]

and beach-nets shall only be used in fish and game district nineteen between the first day of September and the thirty-first day of January of the year following, both dates inclusive, and for the purpose of taking smelt only.

11 Sec. 7. For the purpose of this act, any net hauled from the water to the beach or shore for the purpose of taking fish, shall be known as a beach-net.”

Petitioner was tried and convicted in said justice’s court upon said complaint and took an appeal to the superior court of the county of San Mateo. The judgment of conviction was affirmed and he makes application to this court for the issuance of the writ of

In Re Berto

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SEAWELL, J.

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