State v. Shaw

• Citation: 67 Ohio St. 157,65 N.E. 875
• Parties: STATE v. SHAW et al.
• Decision Date: 18 November 1902
• Court: Ohio Supreme Court

65 N.E. 875

67 Ohio St. 157

STATE v. SHAW et al.

Supreme Court of Ohio.

November 18, 1902

Exceptions to court of common pleas, Lake county.

Henry Shaw and others were indicted for grand larceny. The court directed a verdict for defendants, and the state excepted. Exceptions sustained.

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 sailboat 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 & Hough, the parties named in the indictment, and that the defendants had taken from these two 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 35 feet deep, 8 rods long, and terminated in an aperture leading into the net, which was 2 feet 10 inches in diameter. This tunnel, as it is called, extended into the net, or pot, some 5 or 6 feet, and the pot was about 28 feet square, reaching perhaps, 4 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 case, 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.

Syllabus by the Court

1. To acquire a property right in animals ferae nature, 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...