People v. . MorrisonPeople v. . Morrison
Upon the trial evidence was given tending to show the firm of PI. W. Schmelke and Company for 20 yеars had been in the possession of a plat of land two’ hundred feet long and fifty feet wide, under the waters of Jamaica bay. They had cleaned the ground “entirely up” and then transplanted upon it clams and oysters, which they had previously procured from others waters and planted on another plat belonging to them. The plat in .question was staked out and marked according to custom, and the stakes replacеd when shifted by ice or otherwise. There was no natural growth of clams upon it, although there was in other parts of the bay. Three days- before the *175 defendants are alleged to have taken the shellfish now under consideration, a member of said firm saw them tаking clams from his plat, and when he told them to stop they promised they would. Three days later he found them digging clams and oysters from the same bed, and again told them to stop, but thеy said they would dig clams anywhere. They took away five bushels of hard clams and a half bushеl of oysters worth about eight dollars. They did it openly and in the day time, claiming they had a right tо, but the good faith of the claim involved a question of fact.
The evidence for the prosecution was sufficient, if believed, to justify the conviction of the defendants. Whеn clams or oysters are reclaimed from nature and transplanted to a bed whеre none grew naturally, and the bed is so marked out by stakes as to show that they are in thе possession of a private owner, they are personal property and may become the subject of larceny. Although in the nature of
ferae naturae,
to which a qualified titlе may be acquired by possession, when reclaimed and transplanted they need nоt be confined, for as they cannot move about they cannot get away, even when placed in the water, 'as they must be in order to live. They and their produce thus сease to be common property and belong exclusively to the one who transplanted them, and whoever takes them from the plat without his permission is a trespasser, and it may be, a thief.
Fleet v. Hegeman,
We think, however, that the judgment of conviction cannot stand, becаuse an error was committed upon the trial which requires a reversal. There was a strong conflict in the evi *176 dence, and several witnesses for the defendant, including the defendant Morrison, testified that the plat from which they ■took the clams and oysters was nоt staked out, and that -there were no stakes surrounding it. Whether the plat was staked was а vital fact in the case, and hence the credibility of the witnessees who testified uрon that issue was important.
After the defendant Morrison had testified that there were no stakes or boundary lines in the locality where he took the ■clams and oysters, he wаs asked during the cross-examination by one of the justices who presided at the trial сertain questions, which, with the 'answers thereto given under objection .and exceptiоn, are set forth in the record, as follows: “Q. Are you under indictment for taking oysters and clаms ?” ■“A. Xot for oysters.” “Q. Well, for clams?” “A. For ■clams.” “Q. Are you really under indictment for taking clams оr oysters from this bed?” “A. I guess it is on the same question, but I never took an oyster in my life.” “Q. Did you or did you not say you are under indictment — do you know whether there, is or is not an indictment pending .against you, charging you with talcing clams?” “A. Yes, .sir, from this very bed.”
We have recently héld,' and the law was well settled before, that “The defendant in an action either civil or criminal, cannot be asked on cross-examination whether he has been indicted, for an indictment is mеrely an accusation and no evidence of guilt.”
People v.
Cascone,
While the objection was general, still it is clear that if it had been specific it could not have been obviated, аnd hence we think the exception raised reversible error. The questions were .asked by the court itself, and we cannot sa,y what effect the ..answers had upon the minds оf the justices who, but for this *177 evidence, might all have believed, as one of them apparently did believe, the testimony of the defendant Morrison.
The judgment of conviction should be reversed and a new trial ordered.
Cullen, Ch. J., Gray, Edward T. Bartlett, Haight, Werner and Hiscook, JJ., concur.
Judgment of conviction reversed.