STATE v. KRIDER.

there could have been no difficulty. Or there might have been two counts if there was any uncertainty.

There is error. This will be certified.

PER CURIAM.

Venire de novo.

STATE v. FOARD KRIDER and others.

Indictment-Larceny-Fish-Defective Indictment.

1. Fish are not the subject of larceny unless reclaimed, confined or dead and valuable for food or otherwise.

2. An indictment for larceny which charges the defendant with having stolen "five fish" and fails to allege any of the conditions which render fish the subject of larceny, is fatally defective.

3. In an indictment against two defendants, it is improper to examine each defendant against the other before the Grand Jury for the purpose of obtaining a true bill against both.

(State v. House, 65 N. C. 315, cited and approved.)

INDICTMENT for Larceny tried at Fall Term, 1877, of DAVIE Superior Court, before Cox, J.

The defendants were charged with stealing fish:-The jurors &c. present that (defendants) &c. five fish of the value &c. of the goods &c. then and there being found, did feloniously steal, take and carry away against &c. The names of both defendants were endorsed on the bill of indictment as witnesses, one against the other, and it was insisted by the counsel for defendants that to make co-defendants witnesses against each other before the grand jury was not warranted. No objection was made in the Court below as to the sufficiency of the bill, but the point was taken on the argument here. Verdict of Guilty. Judgment. Appeal by defendants.

STATE v. KRIDER.

Attorney General for the State.

Messrs. J. M. Clement and W. H. Bailey, for the defend

ants.

FAIRCLOTH, J. The defendants were indicted and convicted for stealing "five fish" of the goods &c. Wild animals are not the subject of larceny, unless reclaimed, confined or dead, and are valuable for food or otherwise. State v. House, 65 N. C. 315.

Fish are the subject of larceny only under the same conditions as animals, and the bill of indictment is fatally defective in failing to allege any of those conditions and no amount of proof can supply the defect.

All the books agree that if fish are confined in a trunk or otherwise so that they may be taken at the pleasure of him who has thus appropriated them, then they are the subject. of larceny. "Fish confined in a net or tank are sufficiently secured; but how, in a poud, is a question of doubt, which seems to admit of different answers, as the circumstances of particular cases differ." 2 Bish. Cr. L. § 685; 1 Hale P. C. 511; Foster's Crown Law 366.

An English statute, 5 Geo. III. ch. 14, made it indictable. to steal fish from a river, in any enclosed park. In a case under this statute, "where the defendant had taken fish in a river that ran through an enclosed park, but it appeared that no means had been taken to keep the fish within that part of the river that ran through the park, but that they could pass down or up the river, beyond the limits of the park at their pleasure; the Judges held that this was not a case within the statute." Rex v. Corrodice, 2 Russel 1199. This is sufficient for our case; but it appears from the record that there are two defendants, and that a true bill was obtained by examining each one before the grand jury against the other. We will call the attention of Solicitors and the profession to the question whether there is any authority

STATE v. KRIDER.

for such practice. At present we are aware of none. It probably arose from a loose construction of the Act of 1866, on the law of evidence. It is objectionable, and in the absence of positive statutory enactment cannot be permitted. Let this be certified to the end that judgment be arrested. Error.

PER CURIAM.

Judgment reversed.

STATE v. CAVENESS.

STATE v. JOHN R. CAVENESS.

Indictment--Larceny--Trial--Evidence--Judge's Charge-- Argument of Counsel--Receiving Stolen Goods.

1. It is not permissible for a witness, introduced to impeach another witness, to be asked concerning him, "From his general character in the neighborhood, would you believe him on oath?"

2. A Judge in his charge to a jury is not required to recapitulate collateral evidence testified to on the trial.

3. It is too late after verdict to except to the omission of the Court to recapitulate to the jury any evidence adduced on the trial.

4. This Court will not undertake to supervise the discretionary powers of the Court below over the argument of counsel, unless it clearly appears that such discretion has been abused.

5. Where on the trial of an indictment for larceny the counsel for the State below argued to the jury "that at some time or ether, possisibly one of them might be compelled to have a suit for property upon which he relied for subsistence, and the person with whom he was in litigation might seize and detain it, as the defendant had done in this case; that they must remember that at some time one of them might be placed in the circumstances of the prosecutrix, and as they would expect justice themselves, so they must mete it out to the prosecutrix," when he was stopped by the Court; Held, not to be error; the Court could hardly have done less and was not required to do more.

6. An exception to improper remarks made by counsel in argument to a jury should specify what was said; otherwise this Court cannot see that any prejudice resulted from the irregularity.

7. On a trial for larceny, the counsel for the State in his argument to the jury said, "that if the Judge had believed that the defendant had made out a fair claim to the property, he would have directed a verdict of acquittal without their leaving the box; but as he had not done so, the Judge must not have believed that a fair claim to the property had been shown by the defendant;" this passed unnoticed by the Judge then, and in his charge; when the jury returned with a verdict of guilty and on being polled three of them did not concur, the Judge informed them "that he had no opinion of his own and that it was improper for the counsel so to have represented him ;" Held, to be error; the remarks of the counsel were

STATE v. CAVENESS.

improper and the attempted correction of them by the Court came too late.

8. On the trial of an indictment for larceny, containing a count for receiving, &c., the Court charged the jury at the request of the defendant, "that if they believed that the defendant, although he may not have taken the property himself, but finding it at his house detained it under a claim of right, he cannot be convicted on the second count," but added "that such claim must be a bona fide claim, that is, a claim made in good faith, a claim believed in by himself and not a mere sham claim or pretence of a claim;" Held, not to be

error.

9. To render a defendunt guilty of receiving stolen property, &c., he must know at the moment of receiving it that it has been stolen, and he must at the same time receive it with felonious intent. (Hooper v. Moore, 3 Jones 428; State v. Moses, 2 Dev. 452; Simpson v. Blount, 3 Dev. 34; State v. Scott, 2 Dev, & Bat. 35; State v. Haney, Ibid. 390; Boykin v. Perry, 4 Jones 325; State v. Johnson, 1 Ire. 354; Powell v. W. & W. R. R. Co., 68 N. C. 395; State v. Dick, 2 Winst. 45, cited and approved.)

INDICTMENT for Larceny with a count for Receiving, &c., tried at Fall Term, 1877, of RANDOLPH Superior Court, before Buxton, J.

The defendant was charged with stealing a horse and mule, the property of Mary E. Bray, or receiving the same knowing them to have been stolen. The exceptions taken upon the trial are embodied in the opinion of this Court delivered by Mr. Justice BYNUM. Verdict of guilty. Judgment. Appeal by defendant.

Messrs. A. W. Tourgee and J. T. Morehead, who prosecuted in the Court below, appeared with the Attorney General for the State.

Mr. J. N. Staples, for the defendant.

BYNUM, J. This case is before us on the appeal of the defendant from the refusal of the Court below to give him a new trial for alleged errors, which we will specify and dispose of in their order.