This prosecution for a violation of the provisions of Title 8, Section 69(1), Code 1940, originated in the Justice of the Peace Court on an affidavit and warrant. The charge in the affidavit was that "the offense of Did fish a gill net in a private lake (Big Keyton Lake) without permission has been committed in said County by Grady W. Noah." From a judgment of conviction in that court an appeal was taken to the circuit court where a jury found him guilty as charged and assessed a fine of $200. As additional punishment the court sentenced defendant to the county jail for 20 days.
In the circuit court the Solicitor, although not required to do so under Section 56, Title 8, Code 1940, filed a complaint charging that defendant did "unlawfully, catch or kill, or attempt to take, catch or kill fish by means of a net or seine in a private pond or lake of Big Keaton Fishing Club the property of others in said State and County without consent of the owners thereof."
Defendant filed a motion to strike the Solicitor's complaint on the ground there was a variance between it and the original affidavit. The court overruled the motion. The defendant then interposed a demurrer to the complaint, which was overruled.
The court's ruling in each instance was proper. Aside from the fact that we are of the opinion the complaint in the circuit court was not a departure from the affidavit in the Justice Court, and that the complaint was not subject to the grounds of demurrer interposed, we conclude, the statement by Judge Simpson in Cusimano v. State, 31 Ala.App. 99, 12 So.2d 418, 419, applies with equal force here: "* * * the original affidavit was sufficient upon which to rest the prosecution in the circuit court. * * * The solicitor's complaint was unnecessary, and whatever its defects (if any), the defendant was not thereby prejudiced."
The trial Judge denied appellant's counsel the right to ask the prospective jurors, on voir dire, this question: "I'd like to know if any of them have been on a
"The rule in this state is that, the extent of the examination of prospective jurors upon their voir dire rests in the sound discretion of the trial court." Leath v. Smith, 240 Ala. 639, 200 So. 623, 625. See also Redus v. State, 243 Ala. 320, 9 So.2d 914; Logan v. State, 251 Ala. 441, 37 So.2d 753. We find no abuse of the court's discretion here.
Section 69(1) of Title 8, Code 1940, provides in pertinent part:
Section 68 of said Title 8 defines public and private waters. Private waters are declared to be, "any body of water wholly on lands held in fee or in trust, or under lease by any one person, firm or corporation, * * *."
The State's evidence tended to show that appellant, his wife and another man were observed by E. K. Elledge, a game and fish warden, as they were running gill nets in Big Keaton Lake, a privately operated lake. When arrested defendant had 350 to 400 pounds of fish. He admitted he did not have a permit to fish in the lake.
Officials of the Big Keaton Fishing Club testified the lake and all the lands surrounding it belong to the heirs of a Mr. Allen. It is a natural lake with no dams around it. The club has had the lake rented continuously since 1930. Appellant was not a member of the club and had not been granted a permit to fish in the lake. A receipt for $250 in full payment of rents from April 1, 1954, to April 1, 1955, for Big Keaton Lake, together with a strip of land surrounding the lake 50 feet wide from normal water level, signed "Bessie McCrossin Hill, individually and as agent for other owners of said lake and lands," was introduced in evidence.
Appellant testified he went to the lake with Mr. Lewis, the agent of the club, who, he thought, was the caretaker. Mr. Lewis had guests from Birmingham and defendant furnished fish for a fish fry. He admitted that he was fishing in the lake and that he did not have permission from the club. He said he had heard of the club but didn't know the lake was private.
As to the public or private character of the lake, Mr. Elledge testified that it covers about 30 acres of land, is a quarter of a mile from the river and does not join it by a tributary. If the river gets high enough it sometimes runs into the lake, but it was not spilling into the lake on this occasion.
Mr. M. C. Marll, lock tender from lock 9 on the river, called as a witness by defendant, testified he kept a record of the rise and fall of the river; on January 4th the upper gauge showed a reading of 22.5 feet, which is about 3½ feet higher than it is in dry weather; in extremely high water he has been able to go to Big Keaton Lake from the river, but could not do so not at this stage.
Defendant testified the water was five or six feet high in the lake and could be reached from the river at the time he was arrested.
The conflict in the evidence presented a question of fact for the jury's determination as to the question involved, and the trial court's action in overruling the defendant's motion to exclude the evidence, made at the conclusion of the State's testimony in chief and his refusal to give the affirmative charge at defendant's request, was without error. The evidence was ample to sustain the conviction and the motion for a new trial based on the ground that the verdict and judgment was contrary to the great weight of the evidence, was properly overruled.
As one of the grounds for his motion for a new trial counsel asserts that appellant did not plead to the information or accusation against him, and at the hearing in support of his motion, he introduced oral testimony as well as the Judge's bench notes.
The judgment entry reads:
Obviously, this statement must be taken to mean either that the defendant had entered a plea of not guilty or that he stood mute and the court entered a plea of not guilty for him, as provided by Title 15, Section 276, Code 1940.
The "minute entry showing the judgment constitutes the final record of the judgment", Jordan v. State, 16 Ala.App. 51, 74 So. 864, 865, and it cannot be aided or contradicted by bench notes. Calvert v. State, 26 Ala.App. 189, 155 So. 389; Lockhart v. State, 34 Ala.App. 297, 39 So.2d 40.
Insistence is made that the statute, Section 69(1), Title 8, Code, is void for ambiguity and indefiniteness, in that a different punishment is provided if the violation be "for seining, netting, dynamiting or poisoning fish." Subd. 2. This insistence is without merit.
Counsel for defendant insists the venue was not proven and that requested charges 2 and Z on this point were improperly refused.
But aside from this, the evidence, on the question of venue, showed the lake to be about a half mile long and 150 yards wide. The Tuscaloosa-Hale County line crosses the lake, with the biggest part of the lake lying in Hale County, and some of the north end in Tuscaloosa County. Mr. Elledge testified the defendant, when he first saw him, was running the net on the upper end way out in the lake, approximately 75 yards from the bank. He did not, of his own personal knowledge, know where the county line was or whether he saw defendant in Tuscaloosa or Hale County.
Further, in charge, the trial court called to the jury's attention the provisions of Section 94, Title 15, Code 1940: "When an offense is committed partly in one county and partly in another, or the acts, or effects thereof, constituting, or requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in either county", and Section 95 of said Title: "When an offense is committed on the boundary of two or more counties, or within a quarter of a mile thereof, or when it is committed so near the boundary of two counties as to render it doubtful in which the offense was committed, the jurisdiction is in either county."
The question of venue was for the jury's determination under all the evidence in the case.
Refused charges 5 and 8 were mere statements of legal principles, without instruction as to their effect upon or application to the issues in the case. Holloway v. State, 37 Ala.App. 96, 64 So.2d 115.
There being no reversible error in the record, the judgment is affirmed.