Dean v. State

Fowler, J., delivered the opinion of the Court. This is an appeal from the Circuit Court for Dorchester County. The defendant was indicted and found guilty of having in his possession oysters contrary to certain provisions of the Oyster Law of this State, ch. 380 of the Acts of 1900. The judgment of the Court below was that the defendant should pay a fine of fifty-two dollars and stand committed until fine and costs are paid; whereupon he took an appeal to this Court.

There are two questions presented by this record, one arising under the demurrer to the special plea, and the other on a motion in arrest of judgment. ⁸² 1. The special plea alleged that the oysters in the defendant's possession mentioned in the indictment, were upon a certain schooner of which he was the captain, the said schooner being a buy boat; that only two and one-half bushels of the said oysters, so in his possession, were culled by the officers who arrested him or by any one else, and that the whole cargo on said boat has never been' culled, further than as to •the two and one-half bushels above mentioned. The State demurred to this plea, upon the theory that the .law does not require the whole cargo to be culled. Thus it is provided by sec. 8 “Any person who shall have oysters in .his possession which contain more than five per cent of shells ■án’d oysters less than two and one-half inches from hinge to mouth, which for the purpose of this article are declared to be .unmerchantable oysters, shall be guilty of a misdemeanor, and in ascertaining such percentage the officers of the oyster police force and the measurers and inspectors, are hereby authorized and' directed to select such amount of oysters from any pile, hole or bin, house or other place as he may think proper, and to require’ the same to be culled and disposed of as provided in section 9 of this article. * * * * It is apparent, therefore, that under the foregoing section the officer who is required to do the culling, is authorized, in order to ascertain the percentage of unmerchantable oysters in the cargo to select therefrom any number of bushels he may think proper] In other words so far from being required to cull the whole cargo, the officer- may cull any portion of it to determine the extent to which the law has been violated.

The récord however, discloses the fact that in this particular case .the defendant waived all right to cull the whole cargo and admitted that he had in his possession 225 bushels of oysters and that they will average throughout, as a cargo, eleven per cent unmerchantable oysters. 2. The grounds of the motion in arrest are, first, that the verdict was so vague, ambiguous and uncertain that it could not be properly made the basis of a sentence or judgment, and, secondly, that the offense of which the defendant was ⁸³ convicted was a statutory misdemeanor unknown to common law and that, therefore, no other penalty can be imposed save that which is specifically provided. We do not think there is force in the first objection even if we could consider it under the motion. The verdict of the jury was “guilty.” In this contingency the law