Sec. 761 (2392). Selling oysters not culled.

If any person shall sell or offer for sale, transport or offer to transport out of the state, or from one point in the state to another, or have in his possession any oysters, which have not been properly culled according to law, he shall be guilty of a misdemeanor and be fined not exceeding fifty dollars or imprisoned not exceeding thirty days.

1903, c. 516, s. 3.

Sec. 762 (2393). Oysters where purchased to be carried out of the state. If any person shall purchase and load on any vessel or boat any oysters to be carried out of the state in the shell, except at the following places, to-wit: The south end of Roanoke Island, Stumpy Point Bay, Parched Corn Bay, Wysocking Bay, West Bluff Bay, Great Island Narrows or Swan Quarter Bay (as the oyster commissioner may determine), Portsmouth, Ocracoke, Bay River, mouth of Rose Bay or Harbor Island; or if any person shall load more than one boat or vessel at any of said places at one and the same time, or if any person shall load any boat or vessel with oysters to be carried out of the state without such vessel having an inspector on board at the time the oysters are delivered, or shall carry any vessel loaded or partly loaded with oysters through the canals without a certificate showing that the oysters have been inspected and taxes thercon paid, he shall be guilty of a misdemeanor and be fined not more than fifty dollars or imprisoned not more than thirty days.

1903, c. 516, s. 17.

Sec. 763 (2394). Unloading oysters on Sunday or at night.

If any person shall unload any oysters from any boat, vessel or car at any factory or house for shipping, shucking or canning oysters on Sunday, or after sunset or before sunrise, he shall be guilty of a misdemeanor and be fined not more than fifty dollars or imprisoned not more than thirty days: Provided, whenever any boat or vessel shall have partially unloaded or discharged its cargo before sunset, the remainder of said load or cargo may be discharged in the presence of an inspector.

1903, c. 516, s. 16.

Sec. 764 (2395). Dealing in oysters without license.

If any person shall engage in the business of buying, canning, packing, shipping or shucking oysters without having first obtained a license as required by law, he shall be guilty of a misdemeanor

and be fined not exceeding fifty dollars or imprisoned not exceeding thirty days.

1903, c. 516, s. 9.

Sec. 765 (2396). Dealer failing to keep record.

If any person engaged in buying, packing, canning, shucking or shipping oysters shall fail to keep a permanent record of all oysters bought by him or caught by him, or by persons for him, when and from whom bought, the number of bushels and the price paid therefor, or shall fail upon demand to exhibit such record as required by law, or shall fail to verify the same, he shall be guilty of a misdemeanor and be fined not exceeding fifty dollars or imprisoned not exceeding thirty days.

1903, c. 516, s. 5.

Sec. 766 (2397). Evidence of illegal dredging.

If any boat or vessel shall be seen sailing on any of the waters of this state during the season when the dredging of oysters is prohibited by law in the same manner in which they sail or take or catch oysters with scoops, scrapes or dredges, the said boat or vessel shall be pursued by any officer authorized to make arrests, and if said boat or vessel apprehended by said officer shall be found to have on board any wet oysters or the scoops, scrapes, dredges or lines, or deck wet, indicating the taking or catching of oysters at said time, and properly equipped for catching or taking oysters with scoops, scrapes or dredges, such facts shall be prima facie evidence that said boat or vessel has been used in violation of the provisions of the law prohibiting the taking or catching of oysters with scoops, scrapes or dredges in prohibited territory, or at a season when the taking or catching of oysters with scoops, scrapes or dredges is prohibited by law, as the case may be.

1903, c. 516, s. 28.

Sec. 767 (2398). Arrests without warrant, when and how made.

The oyster commissioner, assistant oyster commissioner and inspector shall have power with or without warrant to arrest any person violating any of the oyster laws.

1903, c. 516, s. 2.

Sec. 768 (2399). Using illegal measures for oysters.

If any person shall in buying or selling oysters use any measure other than that prescribed by law for the measurement of oysters. or if any dealer in oysters shall have in his possession any measure

for measuring oysters other than that prescribed by law, he shall be guilty of a misdemeanor and be fined not exceeding fifty dollars or imprisoned not exceeding thirty days.

1903, c. 516, s. 12.

Sec. 769 (2400). Catching oysters for lime.

If any person shall take or catch any live oysters to be burned for lime or for any agricultural or mechanical purpose, he shall be guilty of a misdemeanor and be fined not exceeding fifty dollars or imprisoned not exceeding thirty days.

Code, s. 3389; 1885, c. 182.

Sec. 770 (2401). Larceny of oysters on private beds.

Any person who shall feloniously take, catch or capture or carry away any shell-fish from the bed or ground of another shall be guilty of larceny and punished accordingly.

1887, c. 119, s. 15.

Sec. 771 (2402). Oysters caught at night; injury to private beds.

If any person shall willfully commit any trespass or injury with any instrument or implement upon any ground upon which shellfish are being raised or cultivated, or shall remove, destroy or deface any mark or monument lawfully set up for the purpose of marking any grounds, or who shall work on any oyster ground at night, he shall be guilty of a misdemeanor. But nothing in the provisions of this section shall be construed as authorizing interference with the capture of migratory fishes or free navigation or the right to use on any private grounds any method or implement for the taking, growing or cultivation of shell-fish.

1887, c. 119, s. 11.

DEFINITION OF NATURAL OYSTER BED.-"A natural oyster bed" as distinguished from an "artificial oyster bed" in the sense in which those terms are employed in The Code, is defined to be one not planted by man, and is any shoal, reef or bottom where oysters are to be found growing, not sparsely or at intervals, but in a mass or stratum in sufficient quantities to be valuable to the public. Willis, 104-764.

Sec. 772 (2408). Who may be licensed to catch oysters.

No person shall be licensed to catch oysters from the public grounds of the state who is owner, lessee, master, captain, mate or foreman, or who owns an interest in or who is an agent for any boat that is used or that may be used in dredging oysters from the public grounds of the state, who is not a bona fide resident of this state and who has not continuously resided therein for two

years next preceding the date of his application for license, and no non-resident shall be employed as a laborer on any boat licensed to dredge oysters under this sub-chapter who has an interest in or who receives any profit from the oysters caught by any boat permitted to dredge oysters on the public grounds of the state. Any person, firm or corporation employing any non-resident laborer forbidden by this section, upon conviction shall be fined not less than fifty dollars nor more than five hundred dollars.

1903, c. 516, s. 6; 1905, c. 525, s. 3.

The decision of the board of shell-fish commissioners fixing the location of the public grounds under the provisions of c. 119, acts of 1887, is final where there was no protest or appeal and in the absence of fraud or mistake; and an entry and grant of a natural oyster bed not included in the boundaries fixed by the board can not be vacated on the ground that such bed was not subject to entry. Spencer, 114—770.

Where a grant has been issued in strict compliance with the law, rights of property are acquired which can not be taken away, even by the state, in the absence of any allegation of fraud or mistake, except after compensation, and under the principle of eminent domain. Spencer, 114—770.

PARDON.

Sec. 773 (5334). Applications for pardon; regulations as to.

Every application for pardon must be made to the governor in writing, signed by the party convicted, or by some person in his behalf. And every such application shall contain the grounds and reasons upon which the executive pardon is asked, and shall be in every case accompanied by a certified copy of the indictment, and the verdict and judgment of the court thereon.

Code, s. 3336; 1869-70, c. 171; 1870-1, c. 61.

Sec. 774 (5335). May grant conditional pardons.

In any case in which the governor is authorized by the constitution to grant a pardon he may, upon the petition of the prisoner, grant it, subject to such conditions, restrictions and limitations as he considers proper and necessary, and he may issue his warrant to all proper officers to carry such pardon into effect in such manner as he thinks proper.

1905, c. 356.

Sec. 775 (5336). Duty, conditions of pardon violated.

If a prisoner who has been pardoned upon conditions to be observed and performed by him violates such conditions, or any

of them, the governor, upon receiving information of such violation, shall forth with cause him to be arrested and detained until the case can be examined by him. The governor shall examine the case of such prisoner, and if it appears by his own admission or by such evidence as the governor may require that he has violated the condition of his pardon, the governor shall order him remanded and confined for the unexpired term of his sentence; said confinement, if the prisoner is under any other sentence of imprisonment at the time of said order, to begin upon expiration of such sentence. In computing the period of his confinement the time between the conditional pardon and subsequent arrest shall not be taken to be part of the time of his sentence. If it appears to the governor that he has not broken the conditions of his conditional pardon he shall be released and his conditional pardon shall remain in force.

1905, c. 356, ss. 2, 3.

Sec. 776 (5337). Duty of sheriff and clerk on pardon granted.

If a prisoner is pardoned conditionally or unconditionally, or his punishment is commuted, the officer to whom the warrant for such purpose is issued shall, as soon as may be after executing it, make due return thereof, signed by him, with his doings thereon, to the governor's office, and shall file in the office of the clerk of the court in which the offender was convicted an attested copy of the warrant and return, and the clerk shall file the same in his office and subjoin a brief abstract thereof to the record of the conviction and sentence, and at the next regular term of said court said warrant shall be entered upon the minutes of the court.

1905, c. 356, s. 4.

CONVICTION. The term "conviction" as used in Const. N. C.. art. 3, sec. 6, authorizing the governor to grant pardons "after conviction" for all offenses, denotes a verdict of guilty rendered by the jury; and a pardon granted after appeal taken to the supreme court from the judgment after verdict of guilty in the court below, is valid. Pearson, C. J., dissenting. Alexander, 76-231.

EFFECT OF PARDON AS TO COSTS.-Fees due officers of the court are vested rights by law, and are not discharged when a defendant receives an unconditional pardon from the governor after conviction and sentence. Mooney, 75-98.

WHEN POWER EXERCISED.-Where the punishment is in the discretion of the trial judge it is to be presumed that the power to pardon will be exercised only in extreme cases. McIntyre, 46 (1 Jones), 1

VOID FOR MISTAKE.-Where upon the face of the pardon it appears that the governor supposed that defendant had been fined as well as imprisoned, and the imprisonment is remitted provided the fine be first paid, when in fact de