Anderson v. Commonwealth
| Decision Date | 01 May 1944 |
| Citation | 29 S.E.2d 838 |
| Parties | ANDERSON . v. COMMONWEALTH. |
| Court | Virginia Supreme Court |
Error to Circuit Court, Prince Edward County; Joel W. Flood, Judge.
W. C. Anderson was convicted of maliciously and unlawfully shooting and injuring dogs of another, and he brings error.
Reversed, and warrant dismissed.
Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.
George Abbitt, Jr., and W. M. Abbitt, both of Appomattox, for plaintiff in error.
Abram P. Staples, Atty. Gen., and Edwin B. Jones, Asst. Atty. Gen, for the Commonwealth.
The accused, W. C. Anderson, was prosecuted and and convicted under a warrant in which he was charged with maliciously and unlawfully shooting and injuring the dogs of D. E. Adams. The warrant was issued and the prosecution had in accordance with the directions of Code, sec. 4467 (Michie).
There were material facts in dispute at the trial, but under well settled rules they will be stated in the light of the evidence introduced for the Commonwealth.
Early in the morning of July 23, 1943, D. E. Adams went out with his hounds for a fox chase near his home in Prince Edward county. The dogs found a fox and chased it across the land of the accused and beyond. Later they returned andagain were crossing his land when he fired several shots at them. Several of the dogs were wounded by these shots. Adams called to the accused and said, "Man, for Lord's sake don't shoot my dogs", to which the accused replied, "I will kill every damn one of 'em and you too." Later the accused shot in the direction of Adams and some of the shot fell on him.
The land of the accused had been posted and he did not allow any fox hunting there. He had told others that he would shoot any dogs found there.
The accused did not deny that he shot the dogs. His defense was that he shot them because they were chasing his stock. He so testified, but evidently the jury were not impressed with his testimony for they found against him. The evidence failed to disclose that any of the stock had been injured.
A license for the dogs and proper tags had been procured from the treasurer of the county, and the tags had been placed on the collars on the dogs. The dogs were not shown to have been listed or assessed for taxation in the office of the Commissioner of the Revenue.
After the verdict of the jury had been rendered, counsel for the accused moved to set it aside because it was not sustained by the evidence. At that time counsel stated that inasmuch as the warrant and prosecution were under the authority of Code, sec. 4467, it was the duty of the Commonwealth to sustain by proof that the accused had actually violated the terms of that statute, and that the dogs had been listed or assessed for taxation. This the Commonwealth failed to prove.
The trial court overruled the motion but expressly held that the prosecution was had under Code, sec. 4467. The court observed that the section required dogs to be listed or assessed for taxation, but that there was no provision for listing or assessing dogs for taxation; that the legislature certainly did not intend the owners of dogs to do something which, under our tax law, it was impossible for them to do before their dogs would be protected under Code, sec. 4467, and when the owner secured his licenses for the dogs, obtained and fastened the dog tags on the collars of the dogs, he had complied with all the requirements of the law. The statute Code, sec. 4467, reads as follows:
The revisors of the Code of 1919 rewrote section 4467. They made substantial changes, adding the latter portion. They said, "As to acts made unlawful by the latter part of the section, the revisors have extended the protection to fowls and to dogs listed or assessed for taxation. * * *" The offense was reduced to
a misdemeanor.
It is the language of the latter portion of the statute which now concerns the court. The statute, in the light of the facts in this case, has never been before this court for construction in so far as we are advised. This case appears to be one of first impression.
The Commonwealth contends that the particular language, "And if any person unlawfully shoot, stab, cut, or wound any horse, mule, or cattle of any person, or unlawfully and maliciously shoot, stab, cut, or otherwise wound or poison any fowl of another, or any dog of another which has been listed or assessed for taxation, with intent to maim, disfigure, disable or kill the same, he shall be guilty of a misdemeanor", is complied with when the owner of a dog goes to the office of the treasurer of the county, secures and pays for the dog license and attaches the dog tag to the dog collar.
Counsel for the accused contends that the license for a dog is not comprehended under section 4467; that it is authorized under section 3305(62) of the Game Inland Fish and Dog Code; that section 4467 requires that a dog must be actuallylisted or assessed for a tangible personal property tax, and not merely licensed, and that the language of section 4467 in this respect is too plain for any reasonable doubt.
Securing a license for a dog is one thing, while listing or assessing it for taxation is quite another and different thing. The difference has been specifically...
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