Respondent was convicted under section 5 of Act No. Ill, Public Acts 1889, which provides that “it shall be unlawful for any person or persons to take or catch, or attempt to take or catch, any fish at any time with seines, pound nets, gill nets, or any species of nets” in certain waters, provided, “that the use of dip nets in catching mullet, redsides, and suckers shall not be unlawful” (3 How. Sta't. § 2197/). The complaint alleged that respondent “did, feloniously and unlawfully, then and there catch, and attempt to take and catch, fish with a fyke or hoop net.”
The respondent offered proof tending to show — •
“That he had made over the nets for the purpose of catching turtles; that the funnel was made large enough so that, when fish, went into the nets, they could swim *622out again; that in a fish net proper-the funnel was left hanging loose, so that there was no opening for the fish to come out; and that these particular nets were made with the opening, and with strings tied from the end of the funnel or opening to the main side of the net, so that, when the net was set as these nets were set; the opening of all the funnels was pulled open thereby, giving the fish plenty of room to- swim out after they went into said nets; that all of said nets were so arranged, and for the purpose of letting fish which swam in, swim out,, and that the turtles which went in could not get out because of their size and shape; that all of these nets were hoop nets; that these nets were set differently than nets were set for catching fish; that these nets were set with pieces of heavy chains at the bottom, so- that the bottom of the nets would be in the mud, and to catch them the nets had -to be on the bottom, and were set in about 12 to 15 feet in depth of water; that in setting nets for fish there are no chains on the bottom to hold them in the mud, for the reason that fish do not crawl on the bottom; that the respondent told Hammond (the deputy game and fish warden), in the winter before, that he was going to set nets for the purpose of catching turtles, and that said Hammond saw said respondent set said nets long before libe time o-f talcing- these nets-, and said nothing about it; that the respondent told said Hammond that he (respondent) had caught turtles in said nets before Hammond took them up, and that there were a few fish in them, and that respondent put them back in the water unharmed.”
It appeared that the nets were drawn by the deputy game warden, and that fish were found therein.
The trial court refused to give to the jury certain instructions, asked for by defendant’s counsel, respecting respondent’s intent and purpose in setting the nets, and instructed the jury as follows:
“If you shall find that the nets that were set there were such nets as would take and catch fish, — I say, if you find those to be the facts, and beyond reasonable doubt, — then this respondent would be guilty of the offense here charged, although he may not have drawn the nets himself. If you find that the nets were drawn by this game warden, and fish were then and there *623caught in those nets, and that those nets belonged to and were set by this respondent, then he would be guilty, under this act, of unlawfully taking or attempting to take or catch fish. The intent with which he set those nets there has nothing to do with the law of this case, and if he set them with the intent to catch turtles, and actually did and were well calculated to catch and imprison fish and take fish, and the fish were actually taken at the time, it would be a violation of this law.”
This instruction was erroneous. The respondent’s testimony tended to show that he set the nets for another purpose. The statute does not prohibit the setting of nets, but the catching or taking of fish from the lake by means of nets. It would be a narrow view to take of the language employed to say that a fish accidentally imprisoned by the use of a net employed for another purpose, and one which was shown to be entirely legitimate, was “caught,” within the meaning of the statute. Whether or not the net was set for the purpose of catching fish was a question for the jury under all the facts and circumstances of the case.
The conviction is set aside, and a ne w trial awarded.
Long and Montgomery, JJ., concurred with McGrath, C. J.