(dissenting).
I dissent. The defendant was charged by information with the crime of resisting a public officer of the State of Utah in attempting to discharge a duty of his office. The following pertinent facts are stated in the majority opinion:
“The warden * * * observed [Sandman] angling with bait which he said appeared to be hamburger. He told Sandman that he was the game warden and requested to see the bait, whereupon Sandman turned away and jerked his pole rapidly back and forth in a swishing movement which Warden Cox interpreted as an attempt to dislodge the bait from the hook. Cox grabbed hold of the fishing pole to prevent this; a scuffle ensued wherein both parties fell into the creek * * * ‘[W]hen Mr. Cox was again able to regain his feet * * * the defendant Sandman took the bait can, which was attached to his * * * belt and tipped the contents into the water and rinsed the can out and also * * * broke the leader from the line and threw the hook and leader into the water.’ ” (Emphasis added.)
Since this case was dismissed by the court and taken from the jury the order of the court must be reversed if the State, in the Bill of Particulars and the offer of proof, presented sufficient facts which would make it possible for reasonable minds to say that beyond a reasonable doubt a crime had been committed.
Neither the Information nor the Bill of Particulars specify what the game warden was attempting to do in the discharge of his duties which the defendant resisted. The information failed to state more than the language of the statute. When the Bill of Particulars was demanded the District Attorney set out the facts herein mentioned and specified that the game warden was performing the following duties:
“ * * * Leo A. Cox, while on duty in the performance of his duties as a game warden of the State of Utah ‡ ‡ ‡ »
This, at best, was a mere conclusion.
The Bill of Particulars then states that the warden observed the defendant fishing and using what appeared to be hamburger or ground meat for bait. The Bill of Particulars alleges that defendant violated the provisions of Section 76-28-54 by resisting an officer in the discharge "of his duties. *74The Bill of Particulars in the concluding paragraph alleges:
“That the said Leo A. Cox was acting within the authority of the law and the scope of his duties, pursuant to the provisions of the statutes of the State of Utah and particularly the provisions of Section 23-3-11, U.C.A.1953; Section 23-3-7, U.C.A.1953, as amended by the Session Laws of 1953; Section 23-3-21, U.C.A.1953 and Section 76-28-39, U.C.A.1953.”
The offense is charged to have been committed on July 18, 1953. By the provisions of Chapter 39, Laws of Utah, 1953, an act creating a Fish and Game Code for the State of Utah, it was provided that: “Title 23, Utah Code Annotated 1953, is repealed.” By the new Fish & Game Code, the provisions contained in repealed Title 23 were substantially re-enacted, with enlarged powers vested in the Fish and Game Commission.
The Bill of Particulars alleges that defendant was fishing with what appeared to be hamburger. If it appeared to the warden to be hamburger, and he as an expert in that field believed it to be hamburger, he was free to place the defendant under arrest. Had he arrested defendant then under the authority of Section 23-10-1, contained in the new Fish & Game Code, he could have legally seized defendant’s pole, line, hook, bait, tackle and bait can and any resistance to the officer then or thereafter would make defendant liable.
Section 23-10-1, of the 1953 Fish & Game Code provides:
“Seizures and Arrests.
“Be it further provided that all seines, guns, nets, tackles, powder, explosives, lime, poison, drugs, chemicals, shocking devices, traps and snares used for or in the unlawful taking of furs, fish or game of any kind found in the possession of or used by any person unlawfully taking or transporting furs, fish or game of any kind, shall be seized by the officers making the arrest, and upon a finding by the court that they were used in the unlawful taking or transportation of furs, fish or game, the same shall be confiscated and after having been held by the fish and game commission for a period of six months, shall be sold at public auction by the fish and game commission, and the proceeds therefrom conveyed into the fish and game fund.”
Not having elected to arrest the defendant (possibly because he was unwilling to-make the arrest on the available evidence) the warden demanded that defendant exhibit his bait. I am of the opinion that since the District Attorney stipulated that “the grabbing of the pole by Mr. Cox the game warden, and the grabbing of the pole was intended, not in the performance of an arrest, but for the purpose of preventing the destroying of evidence and bait” we are required to determine the case as of the time the game warden demanded to see the bait.
*75Does a game warden have a right (capriciously or otherwise) to demand that the bait on a fisherman’s hook be exhibited? There is no statutory provision in the new code declaring that the warden may demand that bait on a fisherman’s hook be taken from the water and exhibited; nor is there any provision enjoining on a fisherman the duty upon demand of a warden to so exhibit his bait, nor were there any such statutory provisions in the repealed legislation.
My attention has not been called to any case where any statute such as ours carries with it the duty on the part of a fisherman to comply with the demand that he exhibit his bait. Nor has this Court been cited to any case where the refusal to show the bait imposes on the fisherman a penalty much more severe than violating the law by fishing with hamburger.
I think it may be conceded that most fishermen, if accosted by a game warden under the circumstances detailed here, would have lifted the line, hook and bait from the water and allowed the warden to see it, but some fishermen would have resented the warden’s interference.
Again, if defendant’s swishing the pole, after the demand to see his bait, established that defendant was fishing with hamburger, an arrest might then have been made. The fact that defendant tipped the contents of his bait can into the water does not prove that he was fishing with hamburger, but if the warden saw that the contents of the can was hamburger and knew the defendant’s fishing with hamburger was thereby established, he might have arrested defendant.
But neither the Bill of Particulars nor the offer of proof state that defendant’s hook was baited with hamburger or that any hamburger was seen in defendant’s bait can or in the stream after the contents were dumped out. Nor is it alleged or established that the water was roily or clear — swift or sluggish — deep or shallow. But if the warden saw what appeared to be hamburger on the hook he probably would have been better able to see a can of it dumped into the same stream.
Let it be further conceded that the State, in issuing licenses to fishermen, may attach reasonable conditions — one of which might well be the obligation on the part of the fisherman to exhibit to the warden his lures, his bait can, and whenever requested the bait on his hook.
But until the legislature sees fit to attach such conditions to the licensing of a fisherman, I am unwilling to judicially legislate such a statute and make the fisherman who declines to show his bait a violator of the law.
Let us assume that in this case, when Mr. Cox demanded the right to see defendant’s bait and the demand was not complied with, that Mr. Cox grabbed the pole from defendant’s hands, raised the bait from the water and found that the hook was baited with an angleworm. This defendant or any other licensed fisherman would be held guilty of *76an indictable misdemeanor for having refused the demand to exhibit the bait.
Let it be assumed that the defendant’s conduct in refusing to exhibit his bait was resistance. I am unwilling to concede that he thereby resisted a public officer in attempting to discharge a duty enjoined upon him, to wit, demanding to see the bait.
I am of the opinion that the ruling of the trial court was correct and that the appeal should be dismissed.