1. (a) A fact-finding tribunal in a criminal case is authorized to believe a part of the defendant's statement in connection with the evidence, in reaching a conclusion as to the guilt or innocence of the defendant.
(b) In the instant case the judge, passing on the facts without a jury, was authorized to find (1) that the venue was sufficiently established by the State's evidence to the effect that the offense was committed on the Clayton County side of Flint River, or (2) that in considering both the State's evidence and the evidence for the defendant, the record did not definitely disclose in which county the offense was committed.
DECIDED JULY 14, 1944. The defendant Nipper was convicted of a violation of the game and fish law by the illegal use of fish baskets in Flint River, the center of the main channel of which is the boundary line between Clayton County and Fayette County. His case was submitted to the trial judge to pass upon the law and the facts without a jury. A motion for new trial was filed on the general grounds only. The court overruled this motion. That judgment is assigned as error.
A State game warden, the only witness for the State, testified: "I am a game warden, having four counties including Fayette and Clayton Counties. On November 18th, 1943, I was on Flint River. I had had several reports of baskets being placed in the river. I was up above what is known as the boat landing on the farm of Crawford Hewell, at the place known as Ann Hole. I had been there some time, when I saw the defendant S.W. Nipper pull up a basket near the Fayette County bank. I understand that the middle of the stream is the county line between Fayette and Clayton Counties. I was about a hundred yards up the stream lying down on the Fayette County side. I saw him in a boat, he was fishing all over the stream. He was evidently fishing — hunting his baskets. I then saw him pull up a basket about six feet of the Clayton County bank. I took it to be a basket. I did not see any log there in the river. I saw him paddle straight over the river, and he *Page 390 pulled up a basket near the Clayton County bank. It was within six feet of the Clayton County side. (Cross-examination.) I did not see him put the basket in the river. As far as any personal knowledge goes, I don't know that he ever put a basket in the river on the Clayton County side, or on the Fayette County side. He didn't catch any fish when he pulled up the basket. I could see from where I was; there were bushes along the bank, but I could see him. I took two baskets from him, he had put them on his car when I took them." The defendant offered one witness in his own behalf, and his statement. The witness testified as follows: That after the arrest of the defendant he accompanied the defendant and the attorney for the defendant to the place on Flint River where the defendant pointed out to him the place where the basket in question was placed in the river by the defendant. At this point the river is "48 feet wide" between the two counties. The defendant pointed out to the witness a place where a fish basket had been fastened to a log nine feet from the center of the river on the Fayette County side — "of course I don't know where it was placed." The witness further testified that from that place (on the Fayette County side), a man lying on the ground one hundred feet up the river could not see what was going on across the river.
The defendant made the following statement: "I have been fishing in Flint River a long time. I have been putting baskets in the river on the Fayette County side. The Fayette County grand jury has been refusing to indict people for fishing, and for that reason I didn't think I would be bothered as long as I stayed on the Fayette County side. I knew the center of the river was the county line, and I was careful to stay on our side of the river, that is on the Fayette County side of the center of the river. I have never put a basket in the river on the Clayton County side. The time Mr. Autry caught me, I put the baskets in the river near the Fayette County side. I had heard the place was being watched, so I had decided to quit, and I went out there to get my baskets out. I got one out near the Fayette County bank all right. I tried to get the other one out, but the weight tied on the wire to the anchor got hung under some logs on the river down under the water, and I had to fish around a good deal trying to get the wire unfastened, and in doing that the boat might have swung over the *Page 391 center of the river on the Clayton County side. I had the weights, old plow points, tied to a wire about twenty feet long, and used the weights as an anchor. I got the basket up out of the water on the Fayette County side, and then pulled on the wire trying to get it out from under the logs; there was one log that extended about twelve feet beyond the center of the river towards the Clayton County bank, and I had to get this wire from under that log before I could get the basket unfastened, so I could take it out to my car. What Mr. Autry saw me pull out of the water was the weights, I already had the basket in the boat before I got across the center line of the river. I did not put the basket in the river on the Clayton County side for the purpose of catching fish, and if the boat floated over the center of the river on the Clayton County side at all, it was while I was trying to get the weight out of the water, and the basket was never at any time put in the river on the Clayton County side for the purpose of catching fish. I made no objections to turning over the baskets to the game warden." The indictment was drawn under the Code, § 45-506, which reads in part as follows: "Any person who shall place or cause to be placed in any of the waters of this State, except private ponds, any trap, basket or similar device for thepurpose of catching fish shall be guilty of a misdemeanor." (Italics ours.) There are two contentions urged by the plaintiff in error as to why the evidence does not sustain the verdict: (a) It is contended and earnestly argued that the evidence does not show that the defendant placed the baskets in the river for the purpose of catching fish. This argument evidently is based on the testimony of the game warden to the effect that he did not know whether the defendant had ever placed a fish basket in Flint River in either of the counties of Fayette or Clayton. If this were all that appeared in the record, or all the judge had to go on, the argument would have some force. But since the judge was authorized to believe a part of the defendant's statement along with the evidence, this defect of the evidence was supplied by the defendant's statement, for he admitted that he had placed the baskets in Flint River for the purpose of catching fish. The judge was authorized to find, under the evidence and the defendant's statement, that he placed *Page 392 the baskets in Flint River for the purpose of catching fish. This brings us to consider the question argued, (b) that the evidence fails to show that the baskets were placed for the purpose of catching fish in Clayton County, Georgia. The defendant contends that they were placed in Fayette County. The Code, § 27-1102, provides: "Whenever a stream of water is the boundary of a county, the jurisdiction of the county shall extend to the center of the main channel of such stream; and if an offense is committed on such stream, and the evidence on the trial does not definitely disclose in which county it was committed, the courts of either county may maintain jurisdiction for the trial and punishment of the offender." From the record it appears that the contention that the venue was not proved is without merit for two reasons: (1) The judge was authorized to believe by inference, at least, from the evidence and from the defendant's statement, that since the game warden saw the defendant remove the basket within six feet of the bank of the river on the Clayton County side, it could not have gotten there by any means other than that the defendant placed it there, notwithstanding the explanation of the defendant. On this particular issue we grant that there was a conflict between the State's evidence and the defendant's contention, but the judge was authorized to believe the State's contention, from the whole record. This is true when we draw conclusions from calculating the width of the river, the length of the wire from the anchor to the basket, the length of the extension of the log from the center of the stream toward the bank on the Clayton County side, and the place on the Fayette County side where the defendant claims to have placed the basket. And (2) where the boundary line between two counties is the center of the main channel of a stream of water, and an offense is committed on such stream, and the evidence on the trial does not definitely disclose in which county it was committed, the courts of either county may maintain jurisdiction for the trial and punishment of the offender. Code, § 27-1102. The judge was authorized, under the evidence, to find the defendant guilty, even if it did not definitely disclose whether the offense was committed in Clayton County or Fayette County.
Counsel for the plaintiff in error earnestly urge that the instant case should be reversed on authority of a decision of this court, Knight v. State, 15 Ga. App. 474 (83 S.E. 797). There is no *Page 393 conflict between what we have said above in the instant case and the opinion in the Knight case. In the Knight case the accusation was drawn under a different Code section, to wit, § 45-602, and charged the defendant with "actually catching shad fish with a set net." In the course of the opinion, the court said: "This admission would have been valuable evidence if the defendant had been charged with the use of nets for the purpose of catching shad, but it did not amount to a confession that he had actually caught any shad, and in point of fact he was prosecuted for catching shad with nets, and not for leaving in the river nets or other apparatus designed for catching shad — an entirely different offense. . . Had he been charged with the offense of using a net for the purpose of catching fish on days prohibited by the statute, the evidence might possibly have authorized the verdict. . . Section 23 [now § 27-1102] of the Penal Code, relating to venue in cases where counties are divided by a stream of water, would not, it seems, apply, since no witness testified definitely that the handling of the nets was at any point on the Altamaha River where that river formed the boundary between McIntosh and Glynn Counties." It follows from what we have written above that instead of the Knight decision sustaining the contention of the defendant, it is in support of the conclusions we have reached in this case.
The court did not err in overruling the motion for a new trial for any of the reasons assigned.
Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.