The facts stated produce a strong impression on our minds that the defendant ought not to have been convicted He lived in Litaker's family, and both Litaker and his wife told him that the chickens were disturbing the garden, and that he must catch them; and they claimed the chickens as their own. The defendant did catch them in the day time when they were "squalling," and carried them to Litaker's kitchen, and gave them to the cook; and Mrs. Litaker ordered them to be cooked; and they were cooked, and were eaten at Litaker's table. The only fact that tends to show evil conduct on the part of the defendant is that he told the cook that the chickens resembled Mrs. Groner's, and he believed they were hers. The jury however, convicted him, and their verdict must stand unless we can see some error in law, or legal influence upon the trial. We think there was such error.
His Honor charged the jury, that before they could convict, they must find that the defendant took the chickens "with a *Page 460 felonious intent." That is true; but what is a felonious intent was the question, and he ought to have explained that to the jury; but instead of doing so, he continued his charge, "that the question of intent had been fully discussed by counsel, and it was a question for them to settle."
Now, that was not a question for them to settle. What is meant by feloneous intent, is a question for the Court, and after the Court defines that, then it is for the jury to say whether he he had such intent. But here the counsel disputed and "fully discussed" — the defendant's counsel, as we may suppose, insisting that there must be clam et secrete; and the State's counsel insisting that secrecy was not necessary; and his Honor leaves it the jury to say which of the lawyers is right.
There was not only error in omitting to charge as above, but there was error in a subsequent part of his charge in response to the prayer of defendant's counsel. His Honor charged, "that if the defendant took the chickens with the intent to deprive Mrs. Groner of her property, or ate them, he was guilty," c. It cannot be maintained, that if one takes the property of another and eats it, that he is guilty of larceny. It may be trespass, or mistake, or larceny, according to circumstances; it is notnecessarily larceny.
PER CURIAM. Venire de novo. *Page 461