There are several reasons why I did not refer to the question of venue in the original opinion which I wrote for the court in this case. In the first place, the question was not tendered as a preliminary exception to the jurisdiction of the court, or before the trial of the case on its merits, but was presented during the progress of the trial and was dealt with as a matter of defense. In fact the judge's decision on the question was not even excepted to. In the second place, the question whether the alleged offense of catching salt-water shrimp in the waters of the state was committed inside of the Parish of St. Mary or south of the border, was a question of fact, and the judge's finding of fact seems to have been supported by the admission made on the trial of the case, in the stipulation of facts. The admission was dictated by the district attorney, and is copied in the prevailing opinion in this case. The admission was that the place where the defendants were seen trawling for shrimp was "directly west of the Atchafalaya River between that point and Marsh Island." The official map introduced in evidence in this case — and in fact every official map of the coast line *Page 282 of the State of Louisiana — shows that the southern boundary of the Parish of St. Mary extends all the way from the mouth of the Atchafalaya River to and beyond Marsh Island. Therefore, trawling for salt-water shrimp "in the waters of this state" anywhere between the mouth of the Atchafalaya River and Marsh Island is within the Parish of St. Mary. There is no other shore line between the Atchafalaya River and Marsh Island but the shore line of the Parish of St. Mary. Hence if the trawling for shrimp in this case, between the Atchafalaya River and Marsh Island, was not within the Parish of St. Mary it was not within the territorial limits of the state, and the statute which purports to make it a crime to catch "salt-water shrimp in the waters of this state" would be extraterritorial legislation, and beyond the authority of the Legislature to enact such a law.
It is true that the admission which is copied in the prevailing opinion in this case, from the stipulation of facts on which the case was submitted to the judge for his decision, ends with the statement that "the distance from the shore line of the Parish of St. Mary, due South to the eastern end of the Marsh line being estimated at twenty-five (25) miles." The phrase "the eastern end of the Marsh line" obviously means "the eastern end of Marsh Island". There is no "Marsh line" anywhere due south from the shore line of the Parish of St. Mary except on Marsh Island; and so, the phrase "eastern end of the Marsh line" cannot mean anything but the eastern end of Marsh Island. But *Page 283 whether the district attorney in his dictating said "eastern end of Marsh Island", or said "eastern end of the Marsh line" is a matter of no importance. The important fact is that the distance from the shore line of the Parish of St. Mary to the eastern end of Marsh Island is not twenty-five miles but only four and one-half miles; and therefore the distance from the shore line of the Parish of St. Mary, due south, to a vessel traveling between the mouth of the Atchafalaya River and Marsh Island would never be much further than four and one-half miles. The scale on which the official map in evidence in this case was drawn is printed on the southwest corner of the map and shows that one inch equals three miles. The scale on which the official map in the office of the State Board of Engineers was drawn is one-sixth of an inch to the mile. According to either map, Marsh Island is located in the admission in this case, nearly twenty miles farther south from the shore line of St. Mary Parish than it really is, as shown on the official maps. The east end of Marsh Island is almost due south — slightly west of due south — from Point Marone, which is on the shore line of St. Mary Parish. The greatest distance, measured due south, from the shore line of St. Mary Parish to the east end of Marsh Island is only 10 1/2 miles. The location of the place where the defendants were seen "trawling for shrimp", — according to the stipulation that is copied in the prevailing opinion in this case, — was "directly west of the Atchafalaya River between that point and Marsh Island". A vessel *Page 284 trawling over that route would not be as far as three leagues from the shore line, or beyond the waters of the state; and as long as she would be within the waters of the state she would be in the Parish of St. Mary; because the east boundary of the Parish of St. Mary — as shown on the official map in evidence in this case — extends southward along the west boundary line of Terrebonne Parish, to Point au Fer, a distance exceeding 13 miles south from the mouth of the Atchafalaya River; and Marsh Island is in the Parish of Iberia, notwithstanding it lies south of the shore line of the Parish of St. Mary.
The Legislature could not have included Marsh Island in the Parish of Iberia, as it did by Act 208 of 1868, if the island had not been above the southern boundary of the state. It is pointed out in the prevailing opinion, as a matter of history, that the southern boundary of Louisiana, on the Gulf of Mexico, includes "all Islands within three leagues of the coast." That description, of course, includes Marsh Island, because in English-speaking countries the measure of distance called a "league" is estimated at three miles, — the nautical league measuring in fact 3.45 miles. See Webster's New International Dictionary, verbo League. See, also, Lipscomb, Sheriff, v. Gialourakis, 101 Fla. 1130, 133 So. 104. The southern boundary line of the Parish of St. Mary therefore, on the basis of three miles to the league, extends 9 miles out from the shore line into the gulf, and on the basis of 3.45 miles to the league, it extends 10.35 miles from the shore line out into the gulf or bay. It is certain therefore *Page 285 that when the defendants were trawling for shrimp between a point near the mouth of the Atchafalaya River and Marsh Island, they were within the boundaries of the Parish of St. Mary. Otherwise they would have been outside the state itself. The map shows that they were in or close beyond Atchafalaya Bay when they commenced trawling, — according to the stipulation of facts.
The judge of the district court did not rest his decision of the question of venue upon the validity of Act 55 of 1938, purporting to extend the state's "gulfward boundary 24 miles farther into the Gulf of Mexico." On the contrary, after referring to Act 55 of 1938, the judge said, in his written opinion in this case: "But, irrespective of this legislative enactment, the boundaries of all parishes which adjoin the Gulf of Mexico extend as far south into the gulf as the state boundary." The judge then quoted from Lipscomb, Sheriff, v. Gialourakis, 101 Fla. 1130, 133 So. 104, 107, thus: "The words `To the Gulf of Mexico' will be construed to mean to the boundary line of the state of Florida in the Gulf of Mexico."
In Lipscomb, Sheriff, v. Gialourakis, which was a prosecution for violating a criminal statute forbidding the use of diving suits, helmets and other deep-sea diving apparatus in the taking of commercial sponges from the Gulf of Mexico within the territorial limits of the State of Florida, one of the defenses urged against the indictment was "that the offense was not committed within the jurisdiction of Taylor county". That was *Page 286 the county in which the grand jury indicted the defendant. He contended that the state could not prove that the alleged violation of the statute, by the use of deep-sea diving equipment, within the territorial limits of the state, out in the Gulf of Mexico, occurred in Taylor county. In response to that plea the Supreme Court of Florida said that all of the bottoms of the Gulf and natural bays within the limits of the State of Florida passed to the state in its sovereign capacity when Florida was admitted into the Union. The court then quoted from the Constitution of Florida the boundaries of the state, which quotation ended thus: "thence northeastwardly to a point three leagues from the mainland; thence northwestwardly three leagues from the land to a point west of the mouth of the Perdido river; thence to the place of beginning." Article V. The court then quoting section 1 of article 8 of the Constitution of Florida, proceeded, thus:
"The State shall be divided into political divisions to be called counties."
"It therefore appears that all of the state of Florida was required to be divided into counties, and therefore it must be construed that counties bordering on the Gulf of Mexico include that area within the gulf adjacent to the upland and out to the state boundary line."
The Supreme Court of Florida then applied the rule pertaining to conveyances of land bordering on navigable waters "with riparian rights connected therewith", the rule being that the lines fixing the riparian rights should be drawn at *Page 287 right angles from the shore line. The court then quoted the statute defining the boundaries of Taylor county, concluding thus: "thence down the western boundary of Lafayette county to the Gulf of Mexico; thence along said Gulf to the mouth of the Aucilla river." And here the court added:
"The words `To the Gulf of Mexico' will be construed to mean to the boundary line of the state of Florida in the Gulf of Mexico."
Finally the court said:
"The state may enforce its sovereign powers and rights through its courts, and for this purpose the courts of the state have jurisdiction over such areas, and the circuit court of Taylor county has jurisdiction to enforce the sovereign rights of the state over that portion of the Gulf of Mexico lying between the shore of the gulf and the state line three leagues distant from the shore and between lines drawn at right angles from the shore line from the mouth of the Aucilla river to the state boundary line and the line drawn at right angles from the shore line from where the western boundary line of Lafayette county touches the waters of the gulf to the state boundary line."
In the present case there is no necessity for adopting a rule for finding the direction in which the side lines of the Parish of St. Mary should be extended to the state line, three leagues south from the shore line of the parish. The reason for this is that the admission made on the trial of this case shows that the trawling, *Page 288 for which the defendants are being prosecuted, was done at a location less than three leagues distant from the southern shore line of the parish, and between the eastern and western boundaries of the parish.
Another interesting decision on this subject was rendered by the Supreme Court of Florida in the case of Skiriotes v. State of Florida, 144 Fla. 220, 197 So. 736, and was affirmed by the Supreme Court of the United States in Skiriotes v. State of Florida, 313 U.S. 69, 61 S. Ct. 924, 930, 85 L. Ed. 1193. The defendant in that case also was prosecuted for violating the statute forbidding the using of deep-sea equipment in the taking of sponges from the Gulf of Mexico off the coast of Florida. The venue of the offense was said to be in the County of Pinellas within 3 marine leagues (said to be 9 nautical miles) from the shore line. Chief Justice Hughes, for the Supreme Court of the United States, said that the question was whether the statute, as applied to persons who were subject to the jurisdiction of Florida was beyond the competency of the state; and he answered that the court had not been referred to any act of Congress with which the state statute conflicted. The Chief Justice concluded by saying that Florida had an interest in the proper maintenance of the sponge fishery and that the statute so far as applied to conduct within the territorial waters of Florida, in the absence of conflicting federal legislation, was within the police power of the state. He said that there was no repugnance in the provisions of the statute to the equal protection clause of the Fourteenth *Page 289 Amendment, because the statute applied equally to all persons within the jurisdiction of the state. The appellant contended that the state had transcended its power by applying the statute to his operations outside the territorial waters of Florida. The Chief Justice went so far as to say that the State of Florida might govern the conduct of its citizens upon the high seas with respect to matters in which the state had a legitimate interest, where there was no conflict with acts of Congress. And the Chief Justice concluded his decision thus:
"We are not unmindful of the fact that the statutory prohibition refers to the `Gulf of Mexico, or the Straits of Florida or other waters within the territorial limits of the State of Florida'. But we are dealing with the question of the validity of the statute as applied to appellant from the standpoint of state power. The State has applied it to appellant at the place of his operations and if the State had power to prohibit the described conduct of its citizen at that place we are not concerned from the standpoint of the Federal Constitution with the ruling of the state court as to the extent of territorial waters. The question before us must be considered in the light of the total power the State possesses (Castillo v. McConnico, 168 U.S. 674, 684, 18 S. Ct. 229, 233, 42 L. Ed. 622, [626]; Hebert v. [State of] Louisiana, 272 U.S. 312, 316, 47 S. Ct. 103, 104, 71 L. Ed. 270, 272, 48 A.L.R. 1102; United Gas [Pub. Serv.] Co. v. [State of] Texas, 303 U.S. 123, 142, [625], 58 S. Ct. 483, 492, 82 L. Ed. 702 [716]), and so considered *Page 290 we find no ground for holding that the action of the State with respect to appellant transcended the limits of that power."
I do not subscribe to the opinion that the district court in and for the Parish of St. Mary was without jurisdiction to decide this case. Section 9 of article 1 of the Constitution provides that all trials of criminal cases shall take place in the parish in which the offense was committed, unless the venue be changed. The defendant in a criminal prosecution may waive his right to avoid being put on trial in the wrong parish, by reserving the question of venue, to be decided by the judge or jury, as the case may be, on the trial of the case on its merits. That is what the defendants did in this case. The record shows that, during the progress of the trial, on a stipulation of facts, as soon as the district attorney dictated the admission as to where the trawling was done by the defendants, their attorney asked permission to file an exception to the jurisdiction of the court, based upon the section of Article 1 of the Constitution which insured to an accused person the right to be charged in the parish in which the offense was committed. It was agreed that this exception would be argued after the completion of the stipulation of facts. The decisions cited in the majority opinion, State v. Nugent, 191 La. 198, 200, 184 So. 746, and State v. Hogan, 157 La. 287, 102 So. 403, and the case of State v. Moore, 140 La. 281, 72 So. 965, and all other cases in which it has been held that the constitutional guaranty protects a defendant not only against being convicted but also *Page 291 against being tried in any parish other than that in which the offense was committed, were cases in which the defendant filed his plea and prosecuted it to a finish before the beginning of the trial of the case on its merits. The question of venue was not tendered before the trial of this case.
I do not concur in the opinion that the alleged error of the trial judge, in deciding that the trawling for which the defendants are being prosecuted was done within the territorial limits of the Parish of St. Mary, "is patent on the face of the record". In the first place I do not find that the judge's decision on that subject was an error; and in the second place an error is never said to be patent on the face of the record if it requires an examination of the evidence to decide whether it is an error.
The question of location of the boundary line of a parish is a question of law, but the question whether an alleged crime was committed on the one side or the other side of the established boundary line is a question of fact. State v. Burton,106 La. 732, 31 So. 291; and State v. Malone, 133 La. 56, 62 So. 350. In State v. Moore, 140 La. 281, 72 So. 965, it was said that, even in cases where the question whether the alleged offense was committed in the parish in which the prosecution was instituted was merely a question of fact, the question did not relate directly to the question of guilt or innocence of the person accused, and that, "when such questions are properly presented, in a criminal prosecution," the Supreme Court has jurisdiction *Page 292 to decide the questions. (The italics are mine). Conceding, for the sake of argument, that the question of venue in this case is presented so as to give this court jurisdiction to decide the question, it is mainly if not entirely a question of fact; and on such questions we defer largely to the judgment of the judge who tried the case.
It is a matter of common knowledge that the large trawlers sometimes go very far into the gulf — perhaps forty or fifty miles from the shore line — in their trawling for large shrimp. When a vessel is trawling for shrimp beyond the boundary line of the state she is not violating the statute, — Section 4 of Act 50 of 1932 as amended by Section 3 of Act 314 of 1940, — which forbids catching salt-water shrimp "in waters of this State". Whether the trawling with which the defendants were charged in this case was done within or beyond the waters of the state is therefore a question of fact on which depends their guilt or innocence. The conclusion of the trial judge on that question must have been founded entirely upon the admission made in the stipulation of facts; because, as stated in the prevailing opinion in this case, "The only statement in the record with reference to the place where the alleged offense took place" is the admission in the stipulations of facts, copied in the prevailing opinion.
I concede that the question of venue — or the determination of the parish in which a crime was committed — if committed on the gulf and within three leagues from the shore line — might present a difficult or *Page 293 even impossible problem in some cases. For that reason, perhaps section 9 of Article I of the Constitution, so far as it requires "that all trials shall take place in the parish in which the offense was committed, unless the venue be changed", ought to be amended so as to provide for fixing the venue of offenses committed on the waters of the gulf, within three leagues from the shore line. But that requirement in the Constitution does not cause any difficulty in this case.
I respectfully adhere to my original opinion, that the district judge in St. Mary Parish had jurisdiction to decide this case and that his decision, that the penal clause in the statute under which the defendants were prosecuted is violative of the equal protection clause of the Fourteenth Amendment, is correct.