## Facts

- Grow & Hough operated anchored pound (trap) nets in Lake Erie near Fairport Harbor to catch fish.
- The net design used a leader and tunnel into a pot that generally retained fish after entry, though fish could sometimes escape, including during storms.
- On May 15, 1901, a sailboat was spotted offshore with fish on board; tugs intercepted it and forced it into harbor.
- Defendants were arrested after statements indicated they had taken fish by lifting two pound nets west of the pier.
- Evidence identified the nets as belonging to Grow & Hough and indicated defendants removed substantial quantities of fish from them.
- Defendants were indicted for grand larceny for stealing 730 pounds of fish alleged to be the property of Grow & Hough.

## Issues

1. Whether fish captured and confined in pound nets are sufficiently possessed to constitute the personal property of the net owners, even if escape is possible.
2. Whether taking fish from such nets can constitute larceny.
3. Whether the trial court erred by directing a verdict of not guilty on the ground that the State failed to prove escape was absolutely impossible.

## Decision

- The Ohio Supreme Court sustained the State’s exceptions and rejected the directed verdict.
- The court held that the trial court applied an erroneous standard by requiring proof that escape was absolutely impossible.
- The court concluded the evidence could support a finding that Grow & Hough had a property interest in the fish confined in the nets.
- Because the fish were capable of being owned, their removal from the nets could constitute larceny under the proper legal standard.
- The case was returned for proceedings consistent with the corrected standard rather than resolved by an acquittal directed on an incorrect legal rule.

## Legal Principles

- A possessor may acquire property in wild animals (ferae naturae) by bringing them within the possessor’s power and control and maintaining that control with intent not to abandon them.
- Possession of wild animals does not require escape-proof confinement; reasonable precautions and practical control can suffice even if escape remains possible.
- Wild animals captured and confined under such control can be the subject of larceny, and a trespassory taking from the possessor’s trap or net may satisfy the property element of the offense.
- A directed verdict is improper where it rests on an incorrect legal standard that removes a fact question from the jury.

## Conclusion

The court held that fish confined in pound nets can be the property of the net owners and thus capable of being stolen, and it rejected a rule requiring absolute impossibility of escape to establish possession of wild animals for larceny purposes.


State v. Shaw, 67 Ohio St. 157, 65 N.E. 875 (Ohio 1902)