
    The State vs. Benjamin Kane.
    It is very much to be doubted whether a person ought ever to be convicted of a felony on the uncorroborated testimony of a prosecutor who claims the properly in question, where the defendant sets up a title in himself; and where the transaction was attended with none of the usual concomitants of larceny, as concealment, &c. the court, upon conviction, will grant a new trial.
    This was an indictment for Hog stealing, tried at Sumter, Fall Term, 1821.
    THE prosecutor swore that in the fall of 1820, he purchased of the defendant two sows. He let him have one of them back again. He understood from the defendant at the time he bought them, that they were all the hogs he had. The one which he kept, had pigs a little after Chirstmas. He kept them in an inclosure and fed them until sometime in April; corn then beginning to get-scarce, he turned them out into the range. He fed them a few times, after which they stayed away and he did not see them again until July. He then found the pigs at the house of Mr. Bossard, where the defendant had lived and from whence he had just removed. The defendant claimed them as his own; but the prosecutor took them away and commenced this prosecution.
    On the part of the defendant, Martha Cook was called. She said she lived with the defendant, from May until September. The pigs in question were running publicly about his house and he fed them there until he moved away.
    
      
      Henry Blanchard saw them about the house and saw the defendant frequently feeding them.
    There was some other testimoney which it is thought is not of sufficient importance to report.
    On this evidence, the jury found the defendant guilty.
    This was a motion for a new trial, on the ground that the verdict was contrary to evidence.
   Mr. Justice Nott

delivered the opinion of the court.

The rules by which this court is usually go-verned in an application for a new trial are so trite, that a repetition of them would appear like telling an old story, with which every one had become familiar; yet in every case we may expect to find a specific difference. A peculiar trait in the character of this case, is that both the prosecutor and the defendant claimed the property, and the prosecutor was the only witness to establish his own right. And I doubt very much, whether a person ought ever to be convicted of a felony, on the uncorroborated testimony of a prosecutor who claims the property in question where the defendant also sets up a title in himself. If the defendantrcould have been allowed his oath, there is very little doubt but he would have sworn with equal confidence that the hogs -jit question were his own. The transaction was not attended with any of the usual concomitants of larceny. The hogs were kept publicly and fed about his house. The prosecutor certainly could not have recovered them in a civil action, because he could not have been a witness himself. But on the contrary, I think these was testimony enough to have authorized the defendant to recover from him. Our laws would seem to fall short of that perfection of reason, which we are disposed to ascribe to them, if a prosecutor might upon his own oath only, convict a person of stealing his property, the value of which the person so •convicted, might immediately turn .about and recover from him. The difficulty of identifying animals of this description, goes very far in m37 opinion, to weaken the testimony of the prosecutor; while the fact, that tfier^ never war; at any time an attempt on the part of the deferí dant to conceal them, strengthens very much his claim to a new trial. ■

Huntington, for the motion.

Evans, solicitor, contra.

I am of opinion therefore, that the motion ought to be granted.

Justices Huger, Gantt and Johnson, concurred,  