Conrad v. State

Terral, J.,

delivered the opinion of the court.

Captain Conrad was indicted in the circuit court of Harrison county for fishing for oysters by dredging in.water less than fourteen feet in depth, and from a conviction therefor he appeals. He objected to the indictment because it did not locate, with reference to headlands or otherwise, the place of said unlawful dredging. His objection, however, was overruled.

1. It appears from the evidence that the dredging of oysters by Captain Conrad was done within a mile and a half south by west from the factory of the Pass Packing Company, located at or near the town of Pass Christian, about the middle of April, A.D. 1901; and it is quite evident from the record that the defendant suffered no harm from the want of more specific location of the waters in which the alleged dredging is shown to have been done. It appears from the evidence contained in the record that the waters of the Mississippi Sound, in Harrison county, are of various depths, and that small areas of water of fourteen feet and more in depth exist among other ares less than fourteen feet in depth. Yet we are of the opinion that there is nothing in the nature and character of the offense which requires that the indictment should locate by headlands, or otherwise, the specific part of Mississippi Sound, in Harrison county, in which the offense was committed. The principal witness for the state says that on the day that the appellant was dredging for oysters upon the public reefs near Pass Christian, the said witness was dredging for oysters within the same waters, and this induced the jury to believe that he was acquainted with the depth of the waters fished in.

2. Certain objectionable remarks of the witnesses Lang and McDonald are excepted to, and it cannot be denied that such remarks were improper, and possibly injurious. Put the court pi’omptly excluder! the remarks from the consideration of the jury, and thereby, so far as it could, undid the mischief wrought. In Michigan, in a case in this respect somewhat similar to the one before us, the court said that the conviction of the defendant was to be tested only by the rulings of the court. From that case, as pertinent here, we quote; “A witness cannot put error into a case by an unauthorized remark, neither called out by a question nor sanctioned by the judge; and, if what he does or says improperly is likely to do mischief, it is presumed the judge will apply the proper corrective in his instructions, if requested to do so. In this case he applied it on the instant so far as ruling out the improper statement could do so, and no doubt he would have given specific caution to the jury if requested. But it is clear that such fault as there was in this case was that of the witness. The rulings of the court were correct.” People v. Mead, 50 Mich, 228 (15 N. W., 95).

We find nothing in the record to justify us in disturbing the conviction of the appellant.

Affirmed.