The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1881-04-30
THE PACIFIC
SATURDAY, APRIL 80, 1881.
Supreme Court of the Hawaiian Islands
In Banco.-April Term, 1881.
REX VS. MANU-,
HARRIS, g. j.. JUDD AND McCULLY, j. j..
HARRIS, g. j.. JUDD AND McCULIY, j. j.
Opinion of the Court. BIZ Judd. J..

Opinion of the Court, By Judd, j.
The defendant was found guilty of larceny in
the Police Court of Honolulu, from which he ap-
pealed to the Intermediary Court, where the
Judgment was affirmed pro lorna, and an appeal
taken to this Court in Banco.
The essential facts are as follows On the
mountain range of this island, back of Waialua,
called the Waianae Mountains, are numbers of
turkeys. These birds were brought to this
country so long ago that there is no remembrance
existing as to the exact time when or by whom
they were imported. These birds are now in a
wild state, afraid of man, breeding in the unefr-
quented parts of the mountain and bush coun-
try and have been hunted down and caught by
devices, precisely as if they were ferde ndturae.
They are not penned or fed, marked by the
landowner, nor does he exercise any actual con-
troll over them, except as he may be able to catch
them and reduce them to his possession.
1t is well known that the domestic turkey is
descended from the wild turkey, first found in
America, modified by breeding and the care of
man, and this perhaps accounts for the tendency
to revert to the wild state which is so strongly
manifested in them. These turkeys, although
wild are not properly speaking wild ami
mails" Where the phrase "wild animals is
used, the word 90 Wild is used as a generic term
to indicate that they are of a species not usually
domesticated, and does not refer to their COM
parative docility or familiarity with man. We
consider that these turkeys are not properly
speaking animals ferde n~aturae, though partaking
of their habits.
he ldlu Oh NllAN1A LIN CAAO % AOSSN ~
have taken the turkeys in question, is the land
of : : Mokulua, - in Waialua, the property of the
prosecuting witness Gaspar Silva, who claims
the ownership of the turkeys by virtue of their
being on his land and of value to him.
The question before us is whether the taking
of the turkeys by the defendant under these cir
cumstances is larceny.
Our Statute defines larceny to be the :" feloni-
ously taking anything of marketable, saleable,
assignable or available value belonging to anoth-
er or being the property of another" Penal
Code, Chapter Is, Section 1. Other Sections of
this chapter are as follows
Section 5. " In order to be the subject of lar
ceny, a thing must be the subject of property
and possession"
Section 6. Domestic animals of value are the
subjects Of larceny, though not at the time
within the actual keeping or control of the owner,
or of any one for him. For instance estrays and
cattle ranging the ommons or mountains of the
islands.
Section 7. Animals, whether those living
in air, or aquatic or amphibious, of species not
usually domesticated, are subjects of larceny
when in the custody, possession and control of
the owner, or of any one for him, and are dis
tinguishable as being, or known by the taker to
be, so in the owners possession, custody or con-
troll. For instance, fish in ponds, or particular
creeks or portions of the sea, doves i'll a dove
cote"
Section IL. " In order to be the subject of lar
ceny, a thing must be owned by or be the pro-
perty, general or special, of, or belonging to,
some one. lndU Is, some one must nave q pro-
perry general or special, in the thing or have
and be entitled to the possession of the thing
The above quoted statutes do not materially
vary from the common law on the subject.
Are turkeys, in the condition and situation of
these turkeys, the property of the owner of the
land on which they range
Section 6 of our statute does not apply. This
section refers to domestic animals which have
gone astray from the keeping of their owners
and in some cases their whereabouts not exactly
known. and also to domestic animals ranging
the commons or mountains, presumably with
the knowledge of their owners, but these are
animals with q known ownership, and capable of
Identification, but which are, for the time being,
out of the keeping and control of their owners,
whereas the claim of ownership for the turkeys
in question is founded solely upon the fact of
their being, at the time of the taking upon the
land of another not the taker.
Now to say that these turkeys are AS solely
because they are on AS land, would lead to the
absurdity that they would become BIS, when
they went on to BIS land.
Suppose on a certain night A goes into the
woods on his own land and ensnares part of a
flock of the so-called g wild turkeys, and the
rest of the flock, being disturbed, cross over the
boundary to the land of B., and the next night
A. ensnares them ON BIS land. On the theory
that the place of capture determines
the ownership, the latter taking would be lar
ceny.
The case of Davis VS. Green, 2 Hawaiian Re-
ports 367, is instructive on this point. This
Court there held that the TACT that the Wild cat
tie of the mountains of Hawaii We're taken on
ones land afforded no presumption that they
were the property of the land owner.
In the case before us, if the owner of the land
where the alleged taking of the turkeys took
place was able to trace them, as the undisputed
defendants of birds owned by him or his grantros,
he would thus show title to them. So far from
this being the evidence in this case, it is more
than probably that these turkeys are not the de-
of a parent stock introduced on this
land by one person, but that these birds have
received accessions at different times from the
tame turkeys of many different individuals.
In the absence, therefore, of proof of owner
ship of these turkeys by the prosecuting witness,
aside from the fact that they were caught on his
land, and it being proved that they cannot be
distinguished from any other turkeys On con-
tiguous lands, they are not the subjects of larceny.
The Legislature of this Kingdom has appar-
emily taken the same view of the domestic
animals which are running wild on the islands,
for they have deemed it necessary to enact that
all 90 cattle, horses, mules, donkeys, sheep, goats
and swine, over twelve months of age, not mark
I'd or branded according to law, and which may
nave been running wild or at large for six months
Dr. over, upon any of the land of this Kingdom,
hall belong to and be the property of the owners
or lessees of the lands on which the said animals
nay be found running" Chapter 81, laws of 1878.
This act makes these enumerated animals, in
,he described circumstances, property, and
therefore the subjects of larceny.
1t is said that unless the Court holds that the
'ct complained of is larceny, land owners Will be
liable to unwarranted intrusions and spoliations.
We cannot hold to be larceny what is clearly not
arceny.
If the civil action of trespass should not be
ound to be sufficient for the protection of land
'wners in this respect, no doubt the Legislature
viii provide further remedies.
judgment reversed and prisoner discharged.
Mr., Preston and Mr.. Hartwel for the Crown ;
!. NJ. Davidson for Defendant.
Honolulu, April %, 1881.