Johnson v. United States

Peter Johnson, Patrick Paul, Ray Johnson, Marten Johnson, Joe Peterson, and Mac Nakamura, appellants herein, were charged with and convicted of illegally fishing for salmon for commercial purposes on August 8, 1952, at Murder Cove, Tyee, Alaska, an area closed to commercial fishing. Appellants admit that they were fishing within an area which had been marked off as closed by the local agent of the Fish and Wildlife Service. However, appellants contend that the Wildlife agent exceeded his authority when he marked off closed areas; and therefore, in fishing within the marked area, they violated no valid statute cir regulation.

. Appellants appeal from the judgment of conviction and move for the first time in this court to dismiss the complaint for the reason that the complaint fails to state an offense.

As to whether an original motion to dismiss the complaint on the ground that no cause has been stated may be made in this court, we need not concern ourselves because a judgment founded upon a complaint which does not state a crime cannot be sustained. Sonnenberg v. United States, 9 Cir., 1920, 264 F. 327 ; 24 C.J.S. Criminal Law § 1678; 3 Am.Jur., Appeal and Error § 328; Rule…