Opinion
April Term, 1858.
C. L. Layton, for the prisoner, objected that on this evidence the indictment could not be sustained, because the fish alleged to be stolen in it were not alleged to be dead fish, and without that averment the law would import that they were live fish; and yet fish in a river, though not so in a private pond, like animals feræ naturæ, are not subjects of larceny. And if not alleged in the indictment to be otherwise, the presumption of law is that they were in their natural state.
James Donovan was indicted for stealing two fishes, commonly called shad, of the goods and chattels of John Smith. The proof was that they were dead shad and had been stolen from the fish-cart of the owner who was vending shad from it in town.
The Court stopped the Attorney General, and Gilpin, C. J., remarked that there were three decisions on the point in the English reports, the last of which had ruled that where the animal is called by the same name, either dead or alive, it is competent under such an indictment as this to prove the stealing of them in a dead state; and shad, he believed, had but that one name whether dead or alive.