Opinion
(January Term, 1872.)
1. The turkey is a domestic animal; therefore when a bill of indictment charges that A. B. "one turkey of value of six pence, of the goods and chattels of C. D., feloniously did steal, take, and carry away," held that such indictment is sufficient in law.
2. Distinction between stealing domestic animals, and animals ferae naturae stated by BOYDEN, JUDGE.
This was an indictment tried before Clarke, Judge, at Fall Term of Wayne Superior Court.
Attorney General for the State.
No Counsel for defendant.
The indictment charged that the defendant, "one turkey of the value of five cents, of the goods and chattels of William Ganis, feloniously did steal, c." Upon the testimony in the case, the defendant was convicted. A motion in arrest of judgment was made by the defendant and sustained by His Honor upon the ground, "that the indictment was insufficient, for that it failed to state that the turkey stolen was a tame turkey. That the turkey was a native fowl of America, large numbers are found in every part of the State, wild and unreclaimed, and that the indictment should have negatived the presumption, that the turkey in question was wild and unreclaimed."
From the ruling of His Honor, the State appealed to the Supreme Court.
His Honor was mistaken in this case, in supposing that our domestic turkey is a creature ferae naturae. All the authorities cited by His Honor, are cases of creatures ferae naturae, and we take the case to be clear, that where a creature (for the stealing of which) a defendant is indicted is ferae naturae, it will not be sufficient to allege, that the property was of the goods and chattels of one A. B., the owner; in such case, the indictment must further allege, that the creature was dead, tamed, confined or reclaimed, Russell on Crimes, vol. 2, p. 152. But surely this cannot be the case, when the defendant is indicted for stealing one of our domesticated turkeys.
In Bishop's Criminal Law, vol. 2, sec. 787-788, speaking of animals, ferae naturae, and of which larceny may be committed, when reclaimed says, "domestic animals and fowls, such as horses, oxen, sheep, hens, peafowls, turkeys and the like; which being tame in their nature, are the subject of larceny on precisely the same grounds as other personal property. As to what is a reclaiming of a wild animal, killing him and getting possession of his carcass is so; that such carcass is fit for food, is a subject of larceny. There is error. This will be certified, so that the Court may proceed to judgment.
PER CURIAM. Error.