The defendants were convicted of using Chinese shrimp or bag nets for the purpose of catching fish in the waters of the state of California, in violation of section 636 of the Penal Code. They have appealed to this court from the several judgments and orders denying their motions for new trials.
The principal point urged for a reversal is that the evidence is insufficient to support the verdict in this, that it shows that they were fishing for shrimp and not for fish.
They were certainly using Chinese shrimp or bag nets, and the evidence clearly shows that upon the day upon which the charge is laid they in fact caught in their bag nets both shrimps and fish. In fact the evidence shows that they caught and kept more fish than shrimps. The fish were all food fish of different varieties, and for the greater part very small. The fish as well as the shrimps (about four tons) were taken from their nets, placed in their boat, and were being taken by defendants to the shore when they were overhauled by the officers. One of the officers on the day in question visited the camp of defendants at Hunter's Point and found there freshly caught fish as well as shrimps in process of drying. From these facts the jury were justified in believing that defendants used the nets for the purpose of catching fish as well as shrimps. If they were using Chinese shrimp nets for the purpose of catching fish they were guilty under the statute, though they were using the same nets for catching shrimps also. It was under the evidence peculiarly the province *Page 282 of the jury to determine the purpose with which defendants used the nets. The evidence is sufficient to support the verdict.
Appellants also contend that the court erred in sustaining an objection to the question asked by defendant's counsel of one of the defendants as follows: "Would you just state to the jury how far from Hunter's Point you were fishing on the eighth day of April of this year?" But an examination of the record discloses that the court did not sustain the objection. The court did make some observations as to the effect of section 781 of the Penal Code, but also stated that the court did not intend to prevent any traverse of the testimony for the people as to where the alleged act was committed. The question was, however, not answered, but that the court never ruled or intended to rule that such question should not be answered is made perfectly clear by its ruling on a similar question later put to the same witness, "How far from the Alameda county line were you fishing on the eighth day of April of this year?" The district attorney objected to the question, but the court overruled the objection, and in doing so stated that the evidence was in traverse of the testimony of the prosecution, and that the court would allow the defense to cover the point.
The only other point relied on is that the court allowed samples of fish taken from defendant's boat by the officers on the day in question to be introduced as evidence. These were a part of the fish caught by defendants in the shrimp nets, and their introduction was clearly proper.
The judgments and orders are affirmed.
Cooper, P. J., and Kerrigan, J., concurred. *Page 283