delivered the opinion of the Court. It is held in all the authorities, that doves are ferce natures, and as such are not subjects of larceny, except when in the care and custody of the owner ; as when in a dovecot or pigeon-house, or when in the nest before they are able to fly. If, when thus under the care of the owner, they are taken furtively, it is larceny

The reason of this principle is, that it is difficult to distinguish them from other fowl of the same species. They often take a flight and mix in large flocks with the doves of other persons, and are free tenants of the air, except when, impelled by hunger or habit, or the production or preservation of their young, they seek the shelter prepared for them by the owner. *16Perhaps when feeding on the grounds of the proprietor, or rest¡ng on ^arn or other buildings, ify killed by a stranger, the owner may have trespass, and if the purpose be to consume them as food, and they are killed or caught or carried away from the enclosure ofj the owner, the act would be larceny.

But in this case there is no evidence of the situation they were in when killed, whether on the flight, a mile from the grounds of the owner, or mingled with the doves of other persons, enjoying their natural liberty. Without such evidence the act of killing them, though for the purpose of using them as food, is not felonious. Therefore a new trial is granted.