Commonwealth v. Palmer

• Decision Date: 02 March 1883
• Parties: Commonwealth v. Louis K. Palmer
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

134 Mass. 537

Commonwealth v. Louis K. Palmer

Supreme Court of Massachusetts

March 2, 1883

Argued March 18, 1881

Suffolk. Complaint, under the St. of 1867, c. 130, § 5, alleging that the defendant, on August 16, 1880, "did keep and maintain a certain female dog, without said dog being then and there registered and licensed according to law, said dog being then and there a dog more than three months old." Trial in the Superior Court, before Gardner, J., who allowed a bill of exceptions, in substance as follows:

The complainant, a constable of Winthrop, testified that the defendant came to Winthrop some time in June 1880, and, in August 1880, was notified by the witness that he must have his dog registered in Winthrop; that the defendant answered that his dog was licensed and registered in Boston, and that was all the law required him to do. The town clerk of Winthrop produced the records of the town, and no license or register of any license for the dog belonging to or kept by the defendant appeared upon the records.

The defendant testified that he was a resident of Boston, and had been for fifteen years, and lived at No. 7 Bulfinch Place that he went to the police station in May 1880, and had a dog, that he kept at his house, registered, numbered described and licensed; that he paid therefor the sum of five dollars, and received the license. The license was put in evidence, and was admitted to be duly issued for the year from May 1880 to May 1881. The defendant further testified that he placed a collar upon the dog, and produced it, having inscribed upon it the number of the license, the name of the defendant and his place of residence, the number, description and residence being the same as stated in the license; that he went to Winthrop about June 1, 1880, intending to remain temporarily, for rest and recreation, and took the dog with him, leaving his home in Boston ready for his occupancy upon his return; that he took a room and engaged board at a hotel but for no fixed time; that he had no fixed time determined upon for remaining in Winthrop, but stayed longer than he had any expectation of, and until about October 1, 1880; that the dog remained there, and was brought home to Boston when he came back; that, during the time he was there, he came to Boston every day to his business; and that he did not cause his license to be recorded by the clerk of the town of Winthrop.

The defendant asked the judge to instruct the jury, that if, upon the evidence, they were satisfied that the defendant was a resident of Boston, and went to Winthrop intending to remain temporarily for rest and recreation, and with no fixed time for remaining, taking with him his dog, duly registered and licensed in Boston, he would be protected from fine or forfeiture under the statute.

The judge refused to instruct the jury as requested, and ruled that a person whose dog was duly licensed in any town or city in the Commonwealth could take his dog into any other city or town in the Commonwealth for temporary purposes, such as for hunting, or to accompany him in travelling from town to town, without having his license recorded in such other town or city; but if such person kept his dog for any substantial length of time in a city or town other than that in which the license was granted, then the license must be recorded by the clerk of such city or town; that if the defendant, having his dog duly licensed in Boston, removed from Boston to Winthrop about June 1, 1880, and there boarded until October 1, and during that time kept his dog there, and did not have his license recorded by the clerk of the town of Winthrop, then the jury would be justified in finding that the dog was kept by the defendant in Winthrop without authority of law; and that, under the statute, the defendant would be liable.

The jury returned a verdict of guilty; and the defendant alleged exceptions.

Exceptions overruled.

C. W. Bartlett, for the defendant.

G. Marston, Attorney General, for the Commonwealth.

OPINION

Field, J.

There was evidence that the defendant was a resident of Boston, and had caused his dog to be registered, numbered, described and licensed in Boston for one year from May 1, 1880, and had caused it to wear around its neck a collar distinctly marked with its owner's name and its registered number; and that a license had been duly issued to him by the chief of police of said city. Sts. 1867, c. 130, §§ 1, 3; 1871, c. 41.

The defendant went to Winthrop about June 1, 1880, for rest and recreation, and took his dog with him, and he remained there, coming however every day to Boston to his business, until about October 1, 1880, when he returned to Boston. While the defendant was living in Winthrop the dog remained there, and the license issued in Boston was not presented for record to the clerk of the town of Winthrop, and was not recorded by him.

The St of 1864, c. 299, § 5, in its last clause, provided that "a license from the clerk of any city or town shall be valid in any part of the Commonwealth, and may be transferred with the dog licensed: provided, said license be recorded by the clerk of the city or town where the owner or keeper of such...