Bond v. Commonwealth

• Decision Date: 12 December 1930
• Citation: 236 Ky. 472,33 S.W.2d 320
• Parties: BOND v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

33 S.W.2d 320

236 Ky. 472

BOND v. COMMONWEALTH.

Court of Appeals of Kentucky

December 12, 1930

Appeal from Circuit Court, Livingston County.

Lawrence Bond was convicted of grand larceny, and he appeals.

Reversed with directions.

J. R Wells and H. P. Wells, both of Smith-land, for appellant.

J. W Cammack, Atty. Gen., and Douglas Vest, of Frankfort, for the Commonwealth.

THOMAS C.J.

The grand jury of Livingston county, by a duly returned joint indictment against appellant, Lawrence Bond, and one Harp, accused them of the offense of grand larceny, the property involved being a small one-eyed dog belonging to McGinnis Mathew, and of the alleged value of more than $20. At the trial thereof the prosecution was dismissed as to Harp because of insufficient proof against him, but appellant was found guilty and punished by confinement in the penitentiary for 18 months. To reverse that verdict and the judgment rendered thereon, he prosecutes this appeal, and by his counsel urges four alleged errors as grounds authorizing a reversal, and which are: (1) That the court erred in overruling the demurrer filed to the indictment; (2) that the evidence was not sufficient to sustain the conviction, and for which reason appellant's motion for a directed acquittal should have been given, but, if mistaken in that, then the verdict is flagrantly against the evidence; (3) incompetent evidence introduced by the commonwealth over defendant's objections and exceptions; and (4) failure of the court to admonish the jury as to the effect of certain evidence, each of which will be considered and determined in the order named.

The argument in support of ground 1 i. e., insufficiency of the indictment and to which appellant's demurrer should have been sustained, is, that a dog is not property that is the subject of larceny, unless its owner has paid the tax or license fee thereon, as provided in section 68b--4 of our present Statutes, and obtained a collar tag and placed it upon the dog, as is provided in section 68b--6 of the same Statutes. With that contention as a premise, it is argued that the indictment should have alleged such facts, since, as is also argued, any person may kill any dog under any of the circumstances outlined in section 68b--21 of the same Statutes, and the cases of Bridges v. Hamilton, 193 Ky. 17, 234 S.W. 744, and Shadoan v. Barnett, 217 Ky. 205, 289 S.W. 204, 49 A. L. R. 843, are cited and relied on in support of that argument. The Bridges Case only sustains the right of one to kill a dog under the circumstances outlined in sections 68b--21 and 68b--24, but no statute that we have been able to find takes away the property rights of the owner of a dog in it, although under the statute the dog may be so circumstanced as to authorize any one to kill him; nor does the failure to pay the tax on and obtain a tag for the dog destroy such property rights, and no such holding was made, nor any such question involved, in the Bridges Case.

The Shadoan Case, instead of supporting the argument of counsel, is, as we construe it, in direct conflict therewith. It was therein held that even at common law dogs were property, but subject to regulation and control by the Legislature under, no doubt, the police power, because of the fact that some of them possess vicious dispositions and are liable to attack and injure members of society as well as to destroy property in other animals and fowls upon which they are prone to prey. Instead of determining that a dog whose owner has not observed any statutory regulation ceased to be property, the Shadoan Case, in effect at least, holds to the contrary, although it recognized that the common-law property right in a dog was of a base nature, rendering the dog not the subject of larceny, but which had long since been departed from because of legislation recognizing property rights in a dog.

Hence, in the case of Commonwealth v. Hazelwood, 84 Ky. 681, 2 S.W. 489, 8 Ky. Law Rep. 586, this court expressly held that, notwithstanding the rule of the common law as to qualified property rights in a dog, it could be and was the subject of larceny, since time had demonstrated that they had long since ceased to be mere possessions for pleasure, but had become useful as animals of value, serving their masters in many profitable ways far in excess of other animals in whom absolute property rights always existed. We take this excerpt from that opinion: "It seems difficult to give a sound reason for the old rule, in view of the indisputable fact that many dogs are esteemed of great value, and justly so considered. It was adopted, however, when, following the Draconian law, grand larceny was punishable with death, and upon the ground, perhaps, that a dog could have no determinate value. This, however, in this day, is not true; nor is it necessary to hold that a dog is of so base a nature that he cannot be the subject of larceny in order to save the life of a man. Property is clothed with value by the laws of society and public opinion. In a state of nature, property does not exist. What one then retains and uses, depends upon his power. When, however, he enters into society, objects become property, because they are impressed by its usages with certain qualities, among which is the right of the owner to their exclusive use, and the power to dispose of them. If it be true that whether an object be property depends upon the usage or notion of society, then, surely, it has impressed upon the dog all the attributes of property. The master is entitled to the exclusive use, and vested with an absolute power of disposition; while the present public estimate of this faithful and useful animal, coupled with the recognition of him as property in various ways by our statutory law, forbids the assumption that he cannot be the subject of larceny because of a supposed base nature."

The fact that an owner may not have complied with the regulatory requirements of an owner of a dog does not destroy the property value of the animal so as to authorize any one to steal it and appropriate it to his own use any more than the failure to procure an automobile license and tag would authorize any one to steal and appropriate to his own use an unlicensed automobile, or to steal and appropriate intoxicating liquor manufactured, owned, and possessed contrary to existing law, and which latter was denied by this court in the recent case of Ray v. Commonwealth, 230 Ky. 656, 20 S.W.2d 484, 66 A. L. R. 1297. It therefore follows that ground 1 is without merit, and which also applies to the argument that the instructions were erroneous because they did not embody the same idea, and also applies to the further argument that, since it appeared that the involved dog in this case had no collar with a tag to it, the peremptory instruction asked for should have been given.

The disposition of ground 2 requires a brief statement of the testimony. The alleged theft occurred, if at all, on the night of November 5, 1929, which was the day of the general election for that year. Appellant worked at the polling place of one of the voting precincts in the village of Tiline, in Livingston county, until the election closed, under the employ of a candidate of that election, his duties being to see that voters favoring his employer were brought to the polls. The undisputed proof shows that, after the closing of the polls, appellant, with perhaps others, went to a restaurant and procured his evening meal, and remained in the village until the ballot box could be carried to the county seat at Smithland, a distance of 12 miles, by a friend of his who resided in the opposite direction from Tiline, and in which direction appellant also resided, he intending to go to his home with and in the automobile of the conveyor of the ballot box after the latter's return. He spent that time mostly at church, there being a protracted meeting conducted in the village at that time. After church was over, he went to the store of the postmaster in the village with several others who were also waiting to be conveyed in the automobile of the same person with whom appellant intended to travel to his home. When that person returned from Smithland, the parties got into the automobile, one of whom was appellant, and were transported to their respective homes, and which was in the neighborhood of 10 o'clock, and appellant remained at his home throughout that night. No one saw him with the dog alleged to have been stolen at any time or any where.

Mrs Mathew, the wife of the owner of the dog, came from her home in the...