
    STATE v. ELKANY HATHAWAY.
    (Filed 4 March, 1909.)
    Larceny — Conviction—Evidence insufficient.
    Indictment for larceny of fish from a “fish slide.” The evidence for the State tended to prove that the owner of a fish slide gave permission to defendant to fish the slide until repaired, and that such permission had not been revoked: Held, error to refuse an instruction that there was no evidence of felonious intent and that the jury should acquit.
    ActioN tried before W. JR. Allen, J., and a jury, at August Term, 1908, of Nash, for tbe larceny of fish.
    Tbe defendant was convicted, and from tbe judgment of tbe court appealed.
    
      Attorney-General for the State.
    
      Austin & Grantham for defendant.
   Brown, J.

The defendant stands convicted of tbe larceny of three fisb, tbe property of William Boothe, taken on 28 April, 1908, from a “slide,” located below tbe falls of Tar River, on tbe property of tbe Rocky Mount Mills. Tbe slide belonged to one Crusenberry, who told Boothe that “be might have all tbe fisb be could get on it.” Tbe slide has not been repaired or used by Crusenberry during tbe year 1908, as tbe superintendent of tbe mill would not perfnit its repair.

Jim Crusenberry, for tbe State, testified that be owned tbe “slide” and got William Boothe to fisb it for him on half shares during tbe year 1907, while be moved away; that be moved back tbe first' of tbe year 1908 and expected to fisb it himself, but moved away later, before tbe fishing season began; that be told Boothe when tbe fishing season came in be would come back and repair the slide, and would get him to fisb it again after that, and that until tbe slide was repaired be (Boothe) might have all tbe fisb be could get from it; that be told, him that he bad beard that Mr. Ferguson would not permit tbe slide to be repaired, and that be did not think it would catch unless it was repaired; that some time early in April, not knowing tbat Bootbe and 'Williams bad repaired tbe slide, so tbat it would eatcb fisb, be told tbe defendant tbat be considered tbe slide public plunder. He also stated to tbe defendant at tbat time tbat if Mr. Ferguson allowed it to be repaired be would tben give Bootbe permission to fisb it again. •

Tbe defendant does not deny tbat be got fisb from tbe'slide on 28 April, 1908, but contends, and tbe entire evidence tends to show, tbat be bad the same right to fisb tbat Bootbe bad.

Crusenberry bad told both tbe prosecutor and tbe defendant, according to tbe State’s own evidence, in effect, tbat they might have whatever fisb they could get from tbe slide.. Tbe right to fisb tbe slide, under contract claimed by Bootbe, expired with tbe year 1907, and whatever right to fisb it be bad during 1908 was not an exclusive right, but in common with tbe defendant. The owner of tbe slide, bad told defendant tbat tbe slide was open to the public and that be bad practically abandoned it.

Tbe defendant requested tbe court to charge tbe jury tbat there was no sufficient evidence of ownership in Bootbe or' of felonious intent upon tbe part of defendant. In refusing such prayer there was error.

New Trial.  