The Manchester journal. [volume] (Manchester, Vt.) 1861-current, 1908-05-28

E bAhe ~ ~ NhtnFi"u i@lnt4i aA1 $50
iSg ny opinion A. 10 ihr ughi u ~
County Warden 10 arrest without war
taui i person Supposed - have ytolsi
"a any u ilc provisions ~ chapter -
+ " ~. And also asking my opinion 8.
b. ihe right ~ ibe ardep ~ search lhl
psrson and the receptacle carried d
ihs person supposed % have broken th'
Law.
Sec a1s5 =. s.. makes i an oifencs
10 catch aud reisie Trout leas thar
sr inches 10 length "a " have 10 one.
possession such trout. And BY ID,
ssme section the possession of any
such Gsh i made prima facie evidence
thai lhe same are taken o. caught from
tho waters ~ this state.
By see. gzJl 7. s., County or Deputy
Fish wardens may arrest on view .
person found violating a provision Of
ibis chapter The fundamental basis
Tor legislature ofihis character is upoE
The principal that fish and game belong
10 tbs state and that private person
may take the same only under the reg
uiAlions made by the state. Therefore,
i follows that no one gets any title "a
she trout less than six inches long foi
the reason thai ihe state does not per.
nit him 10 catch and retain such fish.
Il is really the property OF the state and
20 person has a right to retain IN his
possession such iish,
The Supreme Court OF the state in
ihe ease Of Sheets IS. Atherton, G2 VI
nj page "a discusses at length the sta
tute which is the sntecedent Of See.
j27l 7. s. According to the authority
o. The case cited il is clear that the
warden may arrest without warrant Z
person found violating" any Of The
provisions Of the fish and game law
SO advise that any County Deputy
warden may arrest without warrant an,
person found violating" any Of tn,
provisions of the fish and game law.
The next question is how much in
formation must the warden have Il
warrant his making an arrest without
warrant. Here applies the genera
principle Of law applicable to arrests
without warrant. That rule may bt
generally stated in this way, that the
officer may arrest without warrant
whenever he has reasonable cause tc
believe" that the person arrested II
violating the law. Ii will be noted thai
under sec. 527l Z. s., the right TO ar
rest is only IN ease person is found
violating" a provision OF the law But
il person has in his possession trout
less than six inches long, he is, all thu
time he has them in his possession
violating the provisions of see. 500 Z
S, Therefore it follows that if tn,
warden has reasonable cause TO believe
that person has in his possession q
trout less than six inches long. he may
under the authority of Sec, 527l arrest
him without warrant.
The application Of this law must be
made in view of the nature OF the
crime itself and in view of the means
Of securing evidence showing the com
mission of crime. for ii the warden
could not arrest man personally nn.
Ill he was certain that he had in his
possession trout less than six inches
long, it wonld practically nullify the
law. for anybody breaking the law vii
naturally conceal his offence. believe
that il the warden disclosing his Office
sees a person under such circumstan
ces as TO indicate that the person is il
the possession Of trout caught IN the
waters of this state, that is, II he sees
him coming from from brook with {
fish basket over his shoulder and a fisl
rod in his hand, he has the right to ash
that person to show him the contents
Of the basket and TO show him all tht
fish IN bis possession. believe that
the refusal Of such persons TO show the
fish he has is ground for the warden tc
reasonably believe that the person has
in his possession fish which be has No
right to have. II is my opinion there.
fore that il the warden properly dis.
closes bis Office and asks the person un.
der such circumstances 10 show his
fish, and that person refuses, that the
warden thereupon has the right TO ar.
rest such person without warrant.
The Supreme Court has never quite
gone that far, In fact, the question has
not clearly come up, so far as am
able TO learn in just that way, but my
deductions from expressions OF the
Court in other eases. aud applying the
general rules Of law which apply in
sach cases, lead me 10 the opinion as
above expressed. Now as TO the right
to search a person. No officer has q
right 10 search any person until that
person is in the custody Of the law.
The warden has no right 10 put ms
hands upon person for the purpose
Of search; be can only put his hands
upon a person to arrest him. When
once a person Is arrested he is IN the
custody of the law. aud the general
principle of Law then applies that per.
son arrested may be searched. A dis.
cnssion ~ these principles Is found in
~ American State reports nt page DDS.
Therefore, il IL my opinion that ! nd
wise that the County or Deputy Fish
and Game Warden may search a per.
son whom be has placed under arrest /;
that he cannot search snch person
until that person is placed under ar.
rest that he can only arrest IN case be
has reasonable canse 10 believe that
such person Is violating the law
that The person i violating the law by
having IN his possession trout less
than SIN inches long, thai the posses