Mehr v. State

21 Ohio N.P. (n.s.) 323

• Court: Licking County Court of Common Pleas
• Decided: July 1, 1918
• Status: Published

Opinion

Fulton, J.

(orally).

This is a petition in error filed in this court to reverse the finding of the justice of the peace. It is really submitted upon a question of law. The facts are: Mehr, while in California, followed deep-sea-fishing, and had nets in his possession there which were necessary to do such fishing, and which was perfectly lawful. He had been a resident of this county, and after he had been in California for three or four years he came back to Newark, rented property here, and moved all his belongings back here, and among them was this net. It seems that one of the game wardens went into his house and made an examination and found this net. He was arrested and tried for having it in his possession. The statute under which trial was had is a positive statute. The language is that any person who has in his possession a net which can be used for fishing is guilty and is liable to be fined. The justice who tried the case proceeded upon the theory that there was no 'exception, that is, if a man had a net in his possession, it made no difference how he got it, or what he got it for, if he had it, he was guilty under the statute. He would not permit any explanation, and found the defendant guilty under those facts.

The court thinks that the justice erred; that it was not the intention of the Legislature to cut out all explanation in regard to such a matter. The evidence did not show that he was using that net in any way or attempted to use it, or had done anything with it at all, but merely had it in his possession. The court thinks that the defendant had a right to explain his possession of the net.' You could not have found a jury which would have found the defendant guilty of violating this statute, because there was no intention to violate it.

The judgment of the justice of the peace will be reversed and the case dismissed.