The objection to the indictment is of the most technical character imaginable. It is iu substance, this: that the indictment recites the wrong year in which the act, under which the defendant' was indicted, was passed by the legislature. The indictment alleges, or recités, that the act was passed April 12, 1861. It was, in fact, passed on that day and year, but was repealed the next year. It was re-enacted May 5, 1863, by a provision declam ing that “all the provisions” of that chapter “are hereby re-enacted, and declared to be in full force from and after the passage of this act.” The statute thus re-enacted, was chapter 173 of the Laws of 1861, containing six sections. It is claimed that this is a material variance, which is fatal to the indictment. But it is no variance at all, within the rule on that subject. The offense, was committed after the re-enactment in 1863, and while the act was in force; and it is not pretended there is any misrecital of any of the provisions of the act. A material variance, in such a case, is where some material provision of the statute is misrecited.
It is wholly immaterial when the statute was enacted by the legislature and became a law, provided it was in force when the offense charged in the indictment was committed. It is a public statute, of the provisions of which courts will take judicial notice, and none of which need have been recited in the indictment. But the statement of the time when it was passed, was altogether surplusage, and wholly' imma^ terial; and could by no possibility have prejudiced the defendant. Consequently, the indictment is not rendered invalid by the misstatement of the time of the enactment, (2 B. S. 728, § 52, subd. 4.)
Strictly, as a present law, the act was passed on the 5th *243of May, 1863, though, from the mode of its re-enaotment, it could not be described intelligibly without a reference to its first enactment in 1861, and the statutes of that year must be referred to and consulted for the purpose of ascertaining what the provisions of the act are. The real objection, if any could be taken, would be that the reference did not go far enough, and state the- time of the re-enactment, also. That would have made a complete and perfect reference. But as it has no materiality whatever, the technical defect is cured by the statute.
[Monroe General Term, March 5, 1866,There is no force whatever in the objection to the power of the legislature to pass a valid law to prevent taking fish at certain seasons, within the waters of this state. It is a power which the legislature has always exercised, and the right is founded in considerations of public policy.
The offense consisted in doing the acts prohibited by the statute, and it was wholly unnecessary for the jury to find that the defendant was actuated by express malice. It was enough for them to find that he was guilty of the act. There was no error, therefore, in the refusal of the judge to charge the jury as requested, on that subject.
The. conviction and sentence must be affirmed.
Welles, E. D. Smith and Johnson, Justices.]