
    
      The State vs. George Seagler and Daniel Seagler.
    To chase and shoot a hog with a felonious intent, without removing it after it is shot, will not constitute hog-stealing.
    
      Before Evans, J. at Pickens, Spring Term, 1844.
    This was an indictment for hog-stealing. The evidence, in substance was, that on Sunday, the 10th of March, a dog was heard in the mountain, about half a mile from the house of one Rogers. Rogers, supposing the dog was running something, started to go to the place. When he had gone about half way, a gun.was fired. When he arrived near the place, he saw the defendants behind a large chesnut. They were endeavoring to conceal themselves, but whén he approached within forty yards, they ran off, notwithstanding he called to them three times. A dog was with them. From the place where he saw them, he traced them by their tracks nearly one hundred yards, to where he found the hog in a deep hollow, in a hole around a chesnut tree. The hog was shot through the body with a rifle ball. It was between 10 and 12 o’clock. Both had' rifles.
    The presiding Judge charged the jury, in substance, that the chasing and shooting a hog in the range, with a felonious intent, was larceny, although' it might happen that the actors were prevented, by the intervention of other persons, from carrying off the dead carcass. They were found guilty. ' ..
    The defendants appealed, on the following grounds.
    1. Because his Honor erred in charging the jury, that the shooting of the hog, with a felonious intent, was a sufficient asportation, in law, to complete the offence of larceny, without taking possession of, or carrying away, the same.
    2. Because the testimony did not warrant the finding of the jury, there being no evidence that the hog was moved or interfered with after it was shot.
    Per-ry, for the motion.
    
      Whitner, Solicitor, contra.
   Curia, per

EvaNS, J.

If the defendants, after shooting the hog, had voluntarily gone off and left it, I presume the act would have been nothing more than a trespass. Does the circumstance that they fled on the approach of the witness, Rogers, without removing the hog, make it felony, if the shooting was with the felonious intent to appropriate the hog to their own use ? ' All the authorities seem to concur, that the offence is not complete without some removal. In Cherry’s case, 2 East. P. C. 556, the prisoner was indicted for stealing a wrapper and some pieces of linen cloth, and it appeared the linen was packed up in a wrapper, in the common form of a long square, which was laid lengthwise in a wagon. The prisoner set up the wrapper on one end, in the wagon, for the greater convenience of taking the linen out, and cut the wrapper all the way down for that purpose, but was apprehended before he had taken any thing. All the judges agreed this was no larceny, although his intention to steal was manifest; for the carrying away, in order to constitute felony, must be a removal of the goods from where they were, and the felon must, at least for an instant, be in the entire possession of the goods. There are other cases in East, all illustrative of the same principle, that the offence is incomplete without some removal of the goods; and in this particular, I think my instruction to the jury was wrong, and a new trial is ordered.

Richardson, O’Neall, Butler, Wardlaw and Frost, JJ. concurred.  