¶1 Indictment against the defendant for stealing chickens of Andrew Erwin. The prosecutor testified that he saw defendant and Henry Holbut take and carry off his chickens. They knocked them out of cedar trees. He went to the door with a light. They rocked him and his house. He ran them to the fence and ordered them not to take his chickens. He said he was well acquainted with both the parties and called them by name. *903 He said on cross-examination that they knew him well. Ae saw them knock his chickens out of the tree. They knew him and knew that be saw them taking the chickens. On trial the defendant insisted that he was not guilty of larceny but of forcible tiespass. His Honor held otherwise, “ and charged the jury that if they believed the evidence the defendant was guilty of larceny.” Exception, and an appeal by defendant.
¶2 The defendant’s argument is that the court ought to have submitted the evidence on the question of a felonious intent to the jury, with instructions as to the law arising upon the evidence, taken as true. It has been held since the time of Sir Matthew Hale to the present that to constitute the crime of larceny a felonious intent is an indispensable ingredient. The distinction between larceny and forcible trespass is clear as a legal proposition, but. sometimes it is somewhat difficult to draw the line upon a given state of facts. In this case the offence was committed in the known presence of the owner. In all cases, secrecy clam et secrete, is evidence of a felonious intent, and in many it is held tp be indispensable to establish larceny as distinguished from trespass. What is meant by felonious intent is a question for the court to explaiu to the jury, and whether it is present at any particular time is for the jury to say. State v. Sowls, Phillips 151 ; State v. Powell, 74 N. C., 270 ; State v. Ledford, 67 N. C., 60 ; State v. Gaither, 72 N. C., 458.
¶3 In State v. Powell, 103 N. C., 424, this Court held that secrecy is evidence of a felonious intent, but is not the only evidence of such intent. There may be various circumstances which so complicate the question, that the question of intent must be left to the jury under instructions from the court, upon the principle of resolving reasonable doubt in favor of the defendant. While there is no *904 conflict in the evidence, and assuming it to be true, the question of intent is an important and material one, to be ascertained by the jury, and we think the evidence should have been submitted to the jury as to whether the defendant had a felonious intent at the time of taking the property.
¶4 The unlawful-intent cannot be presumed from the undisputed evidence of the State in criminal actions. The plea of not guilty denies its credibility and the presumption of innocence can be overeóme only by the verdict of a jury. State v. Riley, 113 N. C., 648.
¶5 New trial.