
    Commonwealth versus Thomas Chace.
    Doves are animals feraz natura, and cannot be the subject of larceny, unless when they are in the custody of the owner; as, for example, in a dove-house.
    The defendant was indicted for stealing fourteen tame doves, the property of Benjamin Williams.
    At the trial, before Morton J., it was proved, that Williams had dove-houses in which he reared doves, and that he used them for food ; that the doves mentioned in the indictment occupied these dove-houses, and were claimed by Williams as his property ; that he took care of them and fed them regularly, and that they would come to be fed when called. The evidence also tended to show, that the defendant shot the doves and used them for food, and that he did it animo furandi.
    
    The judge instructed the jury, that if they believed the evidence. and that the doves were taken by the defendant with a felonious intent, they ought to find him guilty. The defendant’s counsel excepted to this instruction, on the ground that doves could not be the subject of larceny. The jury having found the defendant guilty, a motion was made for a new trial.
    
      Russell, for the defendant,
    cited Wallis v. Mease, 3 Binney, 546 ; East’s P. C. tit. Larceny ; Russell on Crimes, tit. Larceny.
    
    
      Morton, Attorney General, contra,
    
    cited 4 Bl. Comm. 236 ; 3 Dane’s Abr. 25, 158, 161.
   Parker C. J.

delivered the opinion of the Court. It is held in all the authorities, that doves are ferce natures, and as such are not subjects of larceny, except when in the care and custody of the owner ; as when in a dovecot or pigeon-house, or when in the nest before they are able to fly. If, when thus under the care of the owner, they are taken furtively, it is larceny

The reason of this principle is, that it is difficult to distinguish them from other fowl of the same species. They often take a flight and mix in large flocks with the doves of other persons, and are free tenants of the air, except when, impelled by hunger or habit, or the production or preservation of their young, they seek the shelter prepared for them by the owner. Perhaps when feeding on the grounds of the proprietor, or rest¡ng on ^arn or other buildings, ify killed by a stranger, the owner may have trespass, and if the purpose be to consume them as food, and they are killed or caught or carried away from the enclosure ofj the owner, the act would be larceny.

But in this case there is no evidence of the situation they were in when killed, whether on the flight, a mile from the grounds of the owner, or mingled with the doves of other persons, enjoying their natural liberty. Without such evidence the act of killing them, though for the purpose of using them as food, is not felonious. Therefore a new trial is granted.  