
    The State of Ohio v. Shaw et al.
    
      Animals ferae naturae — Right of property in — Bo as to be subject of larceny — Possession required of pursuer — But not absolute security against escape — Fish taken from net — Question of larceny — Criminal law.
    
    .1. To acquire a property right in animals ferae naturae, so that they may be the subject of larceny, the pursuer must bring them into his power and control so that he may subject them to his own use at his pleasure, and must so maintain his possession and control as to indicate that he does not intend to abandon them again to the world at large; but in eases where larceny is charged the law does not require absolute security against the possibility of escape.
    2. When fish are enclosed in a net,' or in any other enclosed place, which is private property, from which they may be taken at any time at the pleasure of the owner of the net or enclosure, the taking of them therefrom with felonious intent will be larceny.
    (Decided November 18, 1902.)
    Exceptions to the Court of Common Pleas of Lake county.
    The defendants in error were indicted in Lake county for the crime of grand larceny. The indictment is as follows:
    “In the court of common pleas of Lake county, Ohio, of the term of May, in the year of our Lord one thousand nine hundred and one.
    “The jurors of the grand jury of the state of Ohio, within and for the body of the county of Lake, duly impaneled, sworn and charged to inquire of crimes and offenses committed within the said county of Lake, in the name and by the authority of the state of Ohio, upon their oaths do find and present, that Henry Shaw, John Thomas and James Fostine, late of said county, on the fifteenth day of May, in the year of our Lord one thousand nine hundred and one, with force and arms, in said county of Lake and state of Ohio, unlawfully and feloniously did steal, take and carry away seven hundred and thirty pounds of fish, of the value of forty-one dollars, of the personal property of Morris E. Grow and John Hough, partners as Grow and Hough, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio.”
    One of the defendants, John Thomas, was tried separately. On the trial no evidence was offered by the defendant. The evidence offered by the state disclosed that on the morning of May 15, 1901, about 5 or 6 o’clock, a small sail-boat was discovered two or three miles off Fairport harbor; a tug ran out and overhauled this boat and discovered they had fish on board. In reply to an inquiry where they had got the fish they said near Cleveland out of a trap net. They were asked to come to the harbor with the tug, and refused; two other tugs came to the assistance of the one already there, and brought in the defendants, with their boat, and they were arrested. It is in evidence that on the way in, the defendant, John Thomas, said that “they lifted two pound nets west of the pier and got the fish.” The testimony further tended to show that the two pound nets belonged to Grow and Hough, the parties named in the indictment, and that the defendants had taken from these twm nets somewhere from 100 to 150 pounds of fish, each. It also appears that the construction of these pound nets is such that the entrance to the net was about thirty-five feet deep, eight rods long, and terminated in an aperture leading into the net, which was twu feet and ten inches in diameter. This tunnel, as it is called, extended into-the net, or pot, some five or six feet, and the pot was about twenty-eight feet square, reaching, perhaps, four feet above the water. The evidence shows that the opening of .the tunnel into the pot was the place where the fish entered, and that it was at all times left open. There is no evidence as to the quantity of fish escaping from the nets; it simply appears that it was possible for the fish to go out in the same way they got in. It was also in evidence that these nets were frequently disturbed by wind and storm, and at such times so disordered that fish escaped over the top. When the state had rested its ease the defendant, Thomas, moved the court to arrest the testimony from the jury and direct a verdict of not guilty. The court overruled this motion, but after argument did direct a verdict of not guilty, which was returned by the jury, and to which the state excepted.
    
      Mr. J. M. Sheets, attorney general; Mr. Harry P. Bosworth and Mr. Homer Harper, for plaintiff.
    The trial judge, in directing a verdict of “not guilty,” took the view that while all the other material averments of the indictment had been proved beyond reasonable doubt, yet the prosecution had not proved that the fish were sufficiently “confined,” or “reduced to possession,” to be the subject of larceny. The trial judge should have told the jury, what is the undoubted rule of laAV, to-wit: That fish caught or confined in a net or trap are the subject of larceny. Chit. Bl., book 4, 189; 2 Russ, on Cr. (5 ed.), 83; Clark’s Crim. Law, 243; Desty Am. Cr. Law, section 145q; 2 Am. & Eng. Ency. Law (2 ed.), 345; 6 Am. Rep., 744; 2 Bish. Cr. Law, section 775; 3 Lawson Rights, Remedies and Practice, section 1367.
    
      Whether the fish which defendant was charged with stealing, were so “caught,” or “confined,” or “reclaimed,” as to be the subject of larceny was a question of fact, which should have been submitted to the jury. The defendant offered no evidence, while the testimony of the state showed value and all the other elements of larceny — and that of all contrivances or devices for catching and retaining fish the pound net is the best. Post, Bill of Ex., 9, 10, 11, 12; Goff, 21, 23; Gibson, 81; Hough, 97.
    
      Mr. A. G. Reynolds and Messrs. Foran, McTigue & Baker, for defendants.
    Fish, while roaming at will in public waters, are ■animals ferae naturae, and are the property of the community at large, but they may become the subject of a qualified property in an individual if reclaimed, confined or dead, and if fit for food when such qualified property is acquired, they become the subject of larceny.
    No question has been made but that the waters of Lake Erie are public waters and that the right of fishing is public and common to all.
    
      (a) There is no question but that fish in streams, or bodies of waters like Lake Erie, have been, and are, classed ferae naturae. It being conceded that fish unrestrained in the waters of Lake Erie are not the property of any one and not the subject of larceny, we come to the question at issue, to-wit: What is necessary, in order to bring fish wandering at will in the waters of Lake Erie sufficiently within the dominion of a man so that they can be stolen from him.
    
      (b) In Lawson’s Rights and Remedies, section 1367, encompassing and securing such animals with nets and toils, or otherwise intercepting them in such a manner as to deprive them of their natural liberty and to render escape impossible, may justly be deemed to give possession of them to those persons who, by their industry and labor, use such means of apprehending them. Language to the same effect is used in 2 Am. & Eng. Ency. Law, 42, and numerous authorities cited.
    (c) The authorities seem to he agreed touching the question that in order to render fish subject to larceny they must be brought under the dominion of man. For instance, if they be killed and are in the possession of the slayer, or if caught and confined in traps or nets, or other contrivances, so that escape is rendered impossible and they may be taken at the pleasure of the owner, they are then in his actual possession. People v. Bridges, 16 L. R. A. (Ill.), 684; McCartee v. Orphan Asylum Soc., 18 Am. Dec., 523 and note; 78 N. C., 481; Commonwealth v. Chase, 19 Am. Dec., 348; Wheatley v. Harris, 70 Am. Dec., 258 and note; State v. Doe, 41 Am. Rep., 599; Ward v. State, 17 Am. Rep., 31; 25 Alb. L. J., 444; State v. Brown, 40 Am. Rep., 81; Norton v. Ladd, 20 Am. Dec., 573; and State v. House, 6 Am. Rep., 744.
    Actual bodily seizure is not necessary in order to acquire such property in food fish. It may be acquired by confinement in nets or other contrivances where they may be taken at the pleasure of the owner; but such confinement must be actual and such as to deprive the fish of their natural liberty and render escape impossible. Young v. Hitchens, 51 E. C. L., 606; Dwelle v. Wilson, 7 Circ. Dec., 611; 14 C. C. R., 551; People v. Lumber Co., 39 L. R. A., 581; 116 Cal., 397.
    Food fish in the “trap,” or “pot,” of a pound net set in public waters, are not the subject of larceny so long as the aperture through which they entered is left open so that they may escape therefrom at will.
    Counsel for the state have undertaken to maintain the proposition that fish in a pound net in the condition shown in this case was the subject of larceny, because tire owner has a qualified interest in them, whatever that interest may be said to be. The trouble with that proposition is that counsel failed to distinguish between the two classes of property, and what the courts and writers called qualified property in animals ferae naturae, to-wit: That wild animals are not the property of any one, so that the illustration of a bailee, etc., does not apply. As said the court in Maguer, C. v. People, 97 Ill., 320, no one has the property in animals and fowls until they are reduced to possession.
    Said Blackstone, in 2 Com., 381, a qualified property in wild animals may be obtained in them by a man reclaiming them and making them tame by art and industry, and by education, or by so confining them within his own power that they cannot escape- and use their natural liberty.
    Pish unless reclaimed, confined or dead and valuable for food is not considered to be property. State v. Krider, 78 N. Car., 781.
    A sable caught in a trap was not considered to he property so as to sustain an action for larceny. Norton v. Ladd, 5 N. H., 203.
    Wild animals when captured and so under the control of the capturer that they cannot escape, were the property of the one who captured them. Bac. Abr., 431; State v. House, 65 N. C., 315.
    The state, in the exercise of its power, instead of prohibiting the killing altogether, permits the person killing them to acquire only a qualified right in them,, namely, the right to appropriate them to his own use, and‘the right to sell or transport them for domestic use. The birds in question never became articles of commerce, within the meaning of the term contended for by the defendant. They became private property of a qualified character. The law limited -the purposes for which they might be killed and became private property. The difference between property of this sort and the ordinary private property of commerce is obvious. Connecticut v. Geer, 13 L. R. A., 804; American Express Co. v. People of Illinois, 9 L. R. A., 138; Minnesota v. Chapel, 32 L. R. A., 131; 2 Kent Com., 349.
    It was a question in the Roman law, whether a wild beast belonged to him who had wounded it so that it might easily be taken. Civilians differed on the question, but Justinian adopted the opinion, “That the property in the wounded wild beast did not attach until the beast was actually taken.” And the-author goes further to say “that qualified property in chattels may subsist when goods are bailed, or-pledged, or distrained. But those cases are where there was an absolute owner.”
   Davis, J.

Fish are ferae naturae; yet, “where the animals or other creatures are not domestic, but are ferae naturae, larceny may, notwithstanding, be committed of them, if they are fit for food of man and dead, reclaimed (and known to be so) or confined. Thus * * * fish in a tank or net, or as it seems in any other enclosed place which is private property, and where they may be taken at any time at the pleasure of the owner * * * the taking of them with felonious intent will be larceny.” 2 Russ. Cr., 83. “Fish confined in a tank or net are sufficiently secured.” 2 Bishop Cr. Law, section 775.

The trial judge seems to have directed the jury to return a verdict of “not guilty” on the theory that the fish must have been confined so that there was absolutely no possibility of escape. We think that this doctrine is 'both unnecessarily technical and erroneous. For example, 'bees in a hive may be the subject of larceny, yet it is possible for the bees to leave thb hive by the same place at which they entered. To acquire a property right in animals ferae naturae, the pursuer must bring them into his power and control, and so maintain his control as to show that he does not intend to abandon them again to the world at large. When he has confined them within his own private enclosure where he may subject them to his own use at his pleasure, and maintains reasonable precautions to prevent escape, they are so impressed with his proprietorship that a felonious taking of them from his enclosure, whether trap, cage, park, net, or whatever it may be, will be larceny. For such cases, as is clearly shown by the authorities above quoted, the law does not require absolute security against the possibility of escape, and none of the authorities cited for the defendants in error, except Norton v. Ladd, 5 N. H., 203, sustain their contention. Young v. Hichens, 6 Ad. & Ell., N. S., 606; S. C., 51; E. C. L., 606; is not applicable to this case. That was an action for the conversion of fish which were never in the plaintiff’s net, but had been frightened away from entering into the plaintiff’s net by the defendant and caught in his own net.

In the present case the fish were not at large in Lake Erie. They were confined in nets, from which it was not absolutely impossible for them to escape,' yet it was practically so impossible; for it seems that under ordinary circumstances few, if any, of the|fish escape. The fish that were taken had not escaped, and it does not appear that they would have escaped, or even that they probably would have escaped. They were so safely secured that the owners of the nets could have taken them out of the water at will as readily as the defendants did. The possession of the owners of the nets was so complete and certain that the defendants went to the nets and raised them with absolute assurance that they could get the fish- that were in them. We think, therefore, that the owners of the nets, having captured and confined the fish, had acquired such a property in them that the taking of them was larceny.

Exceptions sustained.

Bueket, C. J., Speae, Shauck, Price and Crew, JJ., concur,  