Davis v. Commonwealth

• Citation: 58 Va. 617
• Parties: DAVIS v. THE COMMONWEALTH.
• Decision Date: 12 February 1867
• Court: Supreme Court of Virginia

58 Va. 617

DAVIS v. THE COMMONWEALTH.

General Court of Virginia.

February 12, 1867

1. The killing a dog is not an indictable offence.

This was an indictment in the Circuit court of Pittsylvania county against Simeon B. Davis for unlawfully, but not feloniously killing a dog, the property of James C. Ricketts. On the trial the defendant moved the court to instruct the jury that a criminal prosecution cannot be sustained for the destruction of dogs. But the court overruled the motion; and the plaintiff excepted.

There was a verdict and judgment for the commonwealth for ten dollars. And thereupon Davis applied to this court for a writ of error; which was awarded.

Barksdale, for the appellant.

The Attorney General, for the commonwealth.

MONCURE, P.

The plaintiff in error was convicted on an indictment charging him with having unlawfully, but not feloniously, killed and destroyed a dog, the property of another, and the question is, whether a dog is property within the meaning of the Code, ch. 192, § 53, p. 796, on which the indictment was founded?

That section, so far as it is material to be stated, declares that if a person " unlawfully, but not feloniously, take and carry away, or destroy, deface or injure any property, real or personal, not his own," he shall be deemed guilty of a misdemeanor."

It was well settled at common law that while, on the one hand, a dog is such property as that its owner may maintain a civil action for the unlawful conversion, destruction or injury thereof by another person, it is not such property as to be the subject of larceny. And this distinction in regard to the nature of this subject has never been altered by statute, but continues still to prevail, notwithstanding the reason for the distinction has long since ceased. It belongs to the legislature and not to the courts to abolish the distinction if it be proper to do so.

Now the question is, In which sense was the word " property" used in the statute above mentioned; in the sense of the word in regard to the offence of larceny, or in its sense in regard to a civil action as aforesaid?

If the question were res integra, it would not be entirely free from doubt. For while, on the one hand, the general word property is used in the statute without any restriction, and is broad enough to embrace, literally, every thing which can be the subject of ownership for any purpose; and while every such thing seems to come, as well within the reason as the meaning of the statute, yet, on the other hand, it must be remembered that this is a penal statute, and ought therefore to be construed strictly, so that if the word " property" has one sense in the criminal law and another in the civil law, it may with some reason be argued, that the word, when used in a penal statute, should be construed in the former sense, in the absence of anything to the contrary in the statute. The peculiar language of this statute seems to support this view. " If a person unlawfully, but not feloniously, take and carry away any property," & c. The legislature seems here to have contemplated only an act which would be felony if it were done feloniously. The statute, in describing the offence, defines larceny, with the exception of the felonious intent, which is expressly excluded. It often happened at common law that on a trial for larceny, though it was proved that the accused unlawfully took and carried away and converted to his own use the goods and chattels of another, yet he was acquitted, because the act was not done " feloniously," or cum animo furandi It was one of the objects of the statute to make the act a misdemeanor, though not done " feloniously." To be sure the statute embraces injuries which could not be the subject of larceny at common law, and to which the word " " feloniously" cannot apply, such as to injuries to real property, & c. These were injuries which came within the mischief designed to be prevented by the statute, and they were therefore embraced in its terms. Some of them were made the subjects of larceny by the Code, ch. 192, § 17, p. 789, which declares that " things which savor of the realty, and are, at the time they are taken, part of the freehold, whether they be of the substance or produce thereof, or affixed thereto, shall be deemed goods and chattels of which larceny may be committed, although there be no interval between the severing and taking away."

But I regard the question involved in this case as, in effect, adjudicated. The section in the Code on which the indictment is founded was derived from the act of 1822-3, ch. 34, § 1, Sess. Acts, p. 36, and is the same in substance therewith, so far as concerns this case. The only difference is in the phraseology of the two sections; that of the act of 1822-3 being full and diffuse in the enumeration of subjects, besides containing the general words " any other property, real or personal, " while the section in the Code contains only the general words " any property, real or personal." Of course I am now confining my remarks to so much only of the two sections as relates to the present inquiry. A comparison of the two sections will, I think, satisfy the mind that the purpose of the framers of the Code was to make no change in the meaning of the former law, but merely to prune it of the superfluous words with which it abounded. That the same construction ought to be put upon the Code as upon the former law in this respect, is shown by the case of Paramore v. Taylor, 11 Gratt. 220, and the cases there referred to. I think we may safely say that the same words, " property, real or personal," which occur in each of the two sections, have the same meaning in each, and embrace the same, and only the same, subjects. Now these words were construed by the General Court in Maclin's Case, 3 Leigh 809, in which it was held that the act of 1822-3, ch. 34, § 1, did not authorize a criminal prosecution for killing dogs belonging to another. There were then on the bench nineteen of the twenty judges that composed that court, all of them men of great eminence and learning in the legal profession. Twelve of them concurred in the decision, and the remaining seven dissented. There seems to have been some difference among the judges composing the majority, upon a question which was mooted in the case; but they all concurred in the opinion that a criminal prosecution cannot be sustained for the destruction of dogs. " By the common law," said Leigh, J. in pronouncing the opinion of the majority, " the property in dogs and other inferior animals is not such as that a larceny can be committed by stealing them, though the possessor has a base property in them, and may maintain a civil action for injuries done to them. And in a penal act, like the one now under consideration, the word ‘ property,’ standing alone, ought to be considered to mean full and complete property, such as, by the common law, may be protected by a public prosecution for the larceny thereof."

I am not prepared to say, and am not called on to say, whether I would have concurred with the majority or the minority had I been a member of the court when that case was decided. Much could have been said on each side, as I have already noticed. But I think the rule stare decisis now applies, and that Maclin's Case governs this. That decision was made not only by great judges, but by the highest court of appeal in criminal cases at that time in the state. It is therefore of binding authority. It was made in July, 1831 more than thirty-five years ago, and has never since been questioned in any case; but on the contrary has continued to stand side by side with the statute as the correct exposition thereof. The...