The San Francisco call., 1895-11-03
TIDE LANDS ARE FREE,
First Test Case in Contra Costa
County of the New Game
Law.
A San Pablo Jury Refuses to Convict
an Accused Poacher on Marsh
Lands.

A Contra Costa Police Court Jury, sit
ting all yesterday at San Pablo, has, in its
wisdom, decided that it is not trespass for
a man to shoot wild ducks on tide lands,
and particularly on the tide lands that two
members of the Fish Commission and a
wealthy resident OF San Pablo would like
very much to have the exclusive privilege
of waterfowl hunting thereon.
1t was hotly contested case from start
to finish, a test case in truth, and it was
fought for the prosecution by Attorneys
W. W. Foote w. S. Timing and Mr.. Met
zer, and for the defense by Attorney George
A. Wentworth.
Though Foote and his colleagues nom
inally represented the State in the absence
OF District A ttorney Brown, they in real
ity appeared for H. F. Emeric, A
Roos and William G. Murdock, who, under
Shooting Club, are the holders and lesses
of the marsh lands upon which the San
Pablo jury has decreed that "an ordinary
man"-as Attorney Wentworth put it in
his flights of elocution-may shoot wild
ducks without being guilty of trespass.
AT least this is deemed to be the prac-
tical effect of the verdict if not its actual
wording. The verdict itself found that
Joseph Jones, a Golden Gate sportsman
and member of the Sportsmen' s Protective
Association, was not guilty of the misde-
meanor with which he was charged in the
complaint.
The testimony was that Mr. Jones was
caught shooting on the Tewksbury marsh
preserves one fine Sunday morning not
long ago; that he was ordered to vacate
the premises; that he refused to do so
claiming that the law enacted by the last
Legislature plainly gave him the right to
shoot on marsh lands; that he was then
arrested and taken over to Mr.. Emeric's
ark. Afterward he went to Justice of the
Peace Wilcox at San Pablo and put up $50
cash bail. All this happened on the 10th
of last month.
OF course the Sportsmen's Protective As
sociation stood by Mr.. Jones, and its treas
urer, NJ. Stack, has taken an active interest
In the defense and was on hand yesterday
at the trial.
tory. A stranger entering the pretty little
town might have thought that an election
was In progress, so many teams were con-
gested there in front of the office of the
Justice of the Peace and SO many of the
nearby neighbors and farmers were in
town.
The jury of seven was composed of the
W. ]. haney, Fred Wolf, Manuel Ma
chado, Charles Keller, John NichoIl, Jose
Costa and Tomaso Maria Silva. The evil
dence, as already stated, was not, in its
essential points, denied by the defense
When Mr.. Jones took the stand he told
practically the same story as had already
been told by the Constable who made the
arrest. The defense pinned its faith on
that section of the game laws passed by
the last Legislature, which says that:
627A. Every person who upon any inclosed
or cultivated grounds, which are private prop
erty, and where signs are displayed forbidding
suEh s sho13iIing, hs3i sR except salt water marsh
of misdemeanor
"But we're not trying the case under
that law" insisted Mr.. Foote, and he Sc.
rlously tried to make the Jury believe that
the law relating to oyster beds and that
was enacted for the purpose of encourag-
ing the shell fish industry on this coast.
was the section applicable in this instance.
Now to uphold this view of the case it
was necessary to offer proof that the
Tewksbury preserves are shell fish beds.
The first witness on this subject was
asked if he had not planted terrapin in the
marsh.
Attorney Wentworth objected, claiming
that terrapin were in no sense shell fish.
Well, they swim and have Shells" said
Mr.. Foote.
II call for a dictionary" said Mr.. Went
worth.
''Oh, the dictionary has nothing to do
with it. A terrapin is shell fish for all
practical purposes said Attorney Tim
ming.
81 submit that terrapin are not shell fish,
your Honor" repeated the defending coun-
sci.
Whereupon the court took an extra tug
on the bandanna about his throat, laid the
judicial cigar on the deal 'bench" and
said:
well, guess terrapin amt shell fish.
They live for three months on land. I
never saw fish doing that"
SO it was decided that terrapin are not
shell fish, and without doubt that opinion
Will hold water if the higher courts use
the natural history definition.
Then some witnesses came to swear that
they had "sown" razor-back clans on
these preserves. Another witness said
there were oysters growing there. and still
another witness told OF painting signs
warning of tr spassers for Mr.. Emeric.
Then the lease was put in evidence-the
lease from the late DR.. Tewksbury to the