Opinion
No. ____.
October 31, 1924.
A.G. Shoup, U.S. Dist. Atty., of San Jose, Cal.
Wm. L. Paul, of Ketchikan, for respondent.
To authorize a condemnation of property seized by the administrative officers as forfeited, the evidence of a violation of the law must be clear and convincing. The testimony on the part of the United States is mostly circumstantial, while that of the defendants is positive that they did no fishing within the waters of Walker's Cove, and I am not satisfied, from the evidence submitted on the part of the United States, in view of the denial by the defendants, that they were actually fishing within the waters of said cove on the morning of September 29th, or that they were fishing within 500 yards of the mouth of the salmon stream at the head thereof. While it is not necessary that the testimony on the part of the prosecution should convince one beyond a reasonable doubt, yet under the authorities the testimony must be clear and convincing that the law was violated.
Such being my view of the testimony in this case, from a careful review of it, I must come to the conclusion that the libel should be dismissed, although I am of the opinion that, under the circumstances as they appeared to the government officers at the time, there were reasonable grounds for the seizure. Such being my conclusion, the libel against the gas screw Pacific, her tackle, apparel, and furniture, and the seine thereon, will be dismissed and the vessel and the seine will be released from custody. It appears that the fish, consisting of 121 dog salmon, had been sold before the initiation of these proceedings. Therefore the proceeds thereof will be paid over to the master of the Pacific. Let findings of fact and decree be entered accordingly.