THE STATE OF WISCONSIN vs. LEANDER MOREY, 2 Wis. 494

By the Court, Whitoit, C. J. This case comes here on the report of the judge of the circuit court for the county of Racine, pursuant to

chapter one hundred and forty-nine of the Revised Statutes. From this report, and from the record sent up by the clerk, it appears that the defendant was indicted for larceny. The indictment charges the larceny to have been committed in the city and county of Racine, and that the property stolen consisted of “one hundred pounds of meat” belonging to one Hugh Gfaston.

It is insisted by the counsel for the defendant that the indictment is bad, for the reason that the property alleged to have been stolen is not described with sufficient certainty; that the term “ meat ” includes in its general signification, all kinds of provision fit for the sustenance of man, and is not sufficiently descriptive of the property alleged to have been stolen. We think this position well taken.

In an indictment for larceny, the property which is alleged to have been stolen, should be described with reasonable certainty; and a charge of stealing meat, which applies not only to the fiesh of all animals used for food, but in a general sense to all kinds of provisions, is too vague and uncertain. It further appears from the report of the Judge, that after the evidence had been heard, he was requested by the prisoner’s counsel to instruct the jury “that the non-consent of the owner must be proved by the owner, when his name is knownwhich in-structi on the judge refused.

We understand the request to he, that the judge would instruct the jury that the testimony of the owner of the property, if known, was necessary to prove that the meat alleged to have been stolen was not taken by the defendant with the owner’s consent. If this is correct, the instruction asked for should have been given. None of the witnesses saw the defendant take the property, but some of the meat was found in the possession of a person to whom it had been sold by the defendant, and other portions of it were found buried in the sand near the house of the defendant’s father.

No circumstance is reported by the .judge, which shows that the testimony of the owner could not have been obtained; on the contrary, he was sworn and testified as a witness on the part of the prosecution. In cases like the present, the general rule undoubtedly is, that the testimony of the owner of the property is indispensable. Rex. vs. Rogers, 2 Campb., 654. Other evidence is secondary in degree. Williams vs. East India Co., 3 East's, 192; 3 Cow. & Hill's Notes, 477, and the cases there cited.

But upon looking into the testimony reported by the judge, we think the fact in question was established by the proper witnesses. Gaston testified that some one broke open a smoke house, and stole the property; he further testified that one Wus-term had the care of the smoke house, and Wusterm testified that the property was stolen. The testimony of these witnesses establishes the fact of the felonious taking of the property; one of them being the owner, and the other the person who had the possession.

The refusal of the judge to give the instruction asked fox’ could not, therefore, have prejudiced the defendant, and we should not, for this cause, have arrested the judgment. But the objection to the indictment is insurmountable. . The judgment must be arrested.