(dissenting). The defendant was convicted of the offense of unlawfully faking fish by the 'use of fyke nets, in contravention of section 5 of Act No. Ill of the Public Acts of 1889. This section provides: “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 any of the waters of this State,” etc. The defendant-does not deny that he set the nets, or that fish were caught and killed thereby, but he says that he did not set these nets from a desire to catch fish, but to catch turtles, and that he made no use of the fish that were caught, but released such as were alive when he took up his net. The trial court held that this did not conslilufe a defense.
*624It is admitted that the defendant used a net adapted to and commonly used for the purpose of catching fish. There is every reason to suppose that he knew that it would catch fish, for it had done so to his knowledge. To hold him guiltless is to say that a man may do those things which.will certainly result in the destruction of fish, if he has another object in view, and will return such fish as he may take, alive or dead, as the case may be, to the water, and not use them, while his neighbor, who desires to keep them, is guilty. In my opinion, a man who sets a net with the knowledge that it will result in the taking and destruction of fish intends to take them, notwithstanding the fact that his primary object may be to accomplish another purpose. He wants the turtles, and to get them he is willing to take or catch the fish. This does not show an absence of intent, for it is just as unlawful to take fish that turtles may be caught as to take fish to sell or to eat.
The right to protect fish by law is within the police power of the State, and there is force in the claim that the act is punishable regardless of the intent. Many cases can be found that hold that convictions may be sustained in the absence of a criminal intent, — e. g., the sale of adulterated milk (Com. v. Farren, 9 Allen, 489); selling liquor not known to be intoxicating (Com. v. Boynton, 2 Allen, 160); marriage of minors by one honestly supposing them of proper age (Beckham v. Nacke, 56 Mo. 546); the killing and sale of a calf under a specified age, though the defendant was ignorant of the animal’s age (Com. v. Raymond, 97 Mass. 567); transporting a slave on a steamboat (State v. Baltimore & S. Steam Co., 18 Md. 189). These cases, and others cited in People v. Roby, 52 Mich. 580, where the subject is discussed, fully justify the doctrine that neglect may be criminal. Here there is not mere neglect, but a positive expectation of doing the act prohibited, and immunity is expected upon the claim that the defendant designed to catch turtles, and to do so involved the taking of fish, but his indiffer*625enee as to tbe fate of tbe fish, relieved Mm from liaMlity under tbe law. In my opinion, tbe man who sets a net adapted to the purpose and known by Mm to be likely to catch fish, and which actually does take them, cannot be said to be guiltless.
I think the conviction should be affirmed.
Grant, J., concurred with Hooker, J.