(dissenting.) The defendant was indicted under section 441 of the Penal Code, which reads as follows: “A person who, not being at the time an actual inhabitant and resident of this state, plants oysters in the waters of this state without the consent of the owners of the same or of the shore, or gathers oysters, or any other shell-fish, from their beds of natural' growth in any such waters, on his own account, or for his own benefit, or the benefit of a non-resident employer, is guilty of a misdemeanor punishable by imprisonment not exceeding six months, or by fine not exceeding one hundred dollars, or both.” The cultivation of oysters in this state, and especially in the waters of Long Island sound, in the vicinity of the city of New York, has come to be a very large and lucrative industry, and it has received encouragement and protection from the legislature in various ways; and the courts have never hesitated to effectuate the salutary purposes of the laws which have from time to time been enacted for such purposes. The indictment against the defendant accuses him of the crime of planting oysters in the waters of the state of New York without the consent of the owners of the same, and without being at the time an actual inhabitant and resident of the state of New York, “committed, without being an actual inhabitant and resident of the state of New York, at the town of Huntington, in the county of Suffolk, aforesaid, on the fourteenth day of July, 1888, by willfully and wrongfully planting oysters in the waters of Huntington bay, in the said town and county, without the consent of the owners, to-wit, the board of trustees of the town of Huntington.” The statute under which this defendant was prosecuted makes ii criminal to plant oysters in the waters of this state without the consent of the owner of the same or of the shore, or to gather oysters or other shell-fish from their beds of natural growth in any such waters, on his own account, or for his own benefit, or the benefit of a non-resident employer; and an indictment under the statute must contain all the facts essential to constitute the crime. It is necessary, under this statute, to do more than charge and prove that a defendant willfully and wrongfully planted oysters in the waters of Huntington bay without the consent of the owners. An essential element of a crime under this statute is the planting of oysters on the account of the defendant, or for his own benefit, or the benefit of a nonresident employer; and without that ingredient there is no guilt, and no crime. *910We are not dealing with an act which is wrongful of itself, but one which is wrongful because it is prohibited by positive law; and therefore all facts necessary to constitute the offense must be specifically stated and charged in the indictment. People v. Clements, 42 Hun, 353; People v. Monteverde, 43 Hun, 447. The objection to the indictment was distinctly raised by demurrer, and we think the demurrer should have been sustained. This conclusion renders an examination of the merits unnecessary, but we feel justified in saying that the proof fails to bring the defendant within the mischief against which the statute in question was aimed. He was only a hired man, and did nothing for his own benefit. He claimed the right to go on these grounds, and plant oysters for his father; and his father claimed the right to occupy the grounds, and he was never warned off, or disturbed in any manner. Upon the first ground examined, the conviction should be reversed, and the defendant discharged.