Jones v. State

Yellott, J., delivered the opinion of the Court. The plaintiff in error was indicted by the grand jury of Dorchester County and was tried and convicted in the Circuit Court for said county ; the indictment charging a violation of the provisions of the Act of 1886, chapter 206, by unlawfully using a certain boat to .catch oysters with scrapes and dredges in prohibited waters within the territorial limits of said county. The j¡ict of Assembly referred to permits the use of licensed boats, not exceeding ten tons, for taking oysters with scrapes and dredges within certain defined limits, but no vessel of any kind can be used for taking oysters with scrapes and dredges beyond those limits. It renders liable to the penalty any person or persons “ who shall use any boat, canoe or vessel” to take oysters with scrapes or dredges” in that part of Fishing Bay which lies to the northward and eastward of ⁶¹⁶ a straight line drawn from tke middle of the mouth of Tedious Creek to Olay Island Lighthouse.

The indictment in both counts, alleges that the offence was committed within these prohibited waters. There was a demurrer to this indictment which was overruled, and the questions raised by the demurrer have been brought into this Court by writ of error. The first assignment of error is that the number of the boat or vessel has not been designated in the indictment. Such designation was unnecessary and would have been mere surplusage, as the provisions of the law are applicable to the use of “any boat, canoe or vessel” for catching oysters with scrapes and dredges within the lipiits named and described in the indictment.

The same remark applies to the second assignment of error which is that the indictment does not specify either the name or the number of the said boat or vessel. The name of the vessel is given in the indictment, but as the indictment is against a person, whom the law declares to be guilty if he uses any vessel within the prohibited waters