majority"> Faircloth, J.

The defendants were indicted and convicted for stealing “ five fish” of the goods &c. Wild animals are not the subject'of larceny, unless reclaimed, confined or dead, and are valuable for food or otherwise. State v. House, 65 N. C. 315.

Eish are the subject of larceny only under the same conditions as animals, and the bill of indictment is fatally defective in failing to allege any of those conditions and no> amount of proof can supply the defect.

All the books agree that if fish are confined in a trunk or otherwise so that they may be taken at the pleasure of him-who has thus appropriated them, then they are the subject of larceny. “ Fish confined in a net or tank are sufficiently secured; but how, in a pond, is a question of doubt, which seems to admit of different answers, as the circumstances of particular cases differ.” 2 Bish. Cr. L. § 685; 1 Hale P. C. 511; Foster’s Crown Law 366.

An English statute, 5 Geo. III. ch. 14, made it indictable-to steal fish from a river, in any enclosed park. In a case-under this statute, “ where the defendant had taken fish in a river that ran through an enclosed park, but it appeared that no means had been taken to keep the fish within that part of the river that ran through the park, but that they could pass down or up the river, beyond the limits of the park at their pléasure; the Judges held that this was not-a case within the statute.” Rex v. Corrodice, 2 Russel 1199. This is sufficient for our case; but it appears from the record that there are two defendants, and that a true bill was obtained by examining each one before the grand jury against-the other. We will call the attention of Solicitors and the profession to the question whether there is any authority *483 for such practice. At present we are- aware of none. It probably arose from a loose construction of the Act of 1866, on the law of evidence. It is objectionable, and in the absence of positive statutory enactment cannot be permitted.

Let this be certified to the end that judgment be arrested.

Error.

Per CujriaM. Judgment reversed.

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