Dinwiddie v. State

• Decision Date: 22 September 1885
• Citation: 2 N.E. 290,103 Ind. 101
• Parties: Dinwiddie v. State.
• Court: Indiana Supreme Court

103 Ind. 101

2 N.E. 290

Dinwiddie

v.State.

Supreme Court of Indiana.

Filed September 22, 1885.

Appeal from Lake circuit court.

Wm. Johnston, for appellant.

E. D. Crumpacker, for appellee.

Zollars, J.

Appellant was tried, convicted, and fined $10 upon a charge of having mischievously and maliciously killed a dog owned by the prosecuting witness. The prosecution is based upon the act of March 7, 1883, (Acts 1883, p. 148,) which is an act to provide for the taxation of dogs, to regulate matters connected therewith, providing penalties for a violation of its provisions, and repealing the act upon the same subject approved April 13, 1881, (Rev. St. 1881, § 2647 et seq.)

A reversal of the judgment is asked upon two grounds: The first is that the trial court erred in not allowing appellant to prove the value of the dog. The second is that the evidence does not show malice on the part of appellant.

There is no controversy about the fact that appellant shot and killed the dog. The theory of his counsel seems to be that he had a right to kill it because it was upon his premises, and hence off those of its owner. The act of 1852 (Rev. St. 1881, § 2646) provided as follows: “If the owner of any dog which is in the habit of running from home and wandering about without the presence of its owner shall neglect or refuse to confine such dog, after due notice given of its wandering habits, it shall be lawful for any person to kill such dog whenever it may be found running about, off the premises and away from the presence of its owner.” The act of 1881 provided that township trustees should furnish to the owners of dogs metallic tags, which the owners should attach to a collar to be worn by the dogs. It was the duty of constables, and lawful for any person, to kill any dog running at large without such collar and tag. On the other hand, it was provided that any person who should maliciously injure or kill any dog which had been duly registered, and was wearing such metallic tag, should be guilty of a misdemeanor and fined. There was a proviso that in all cases where such dogs were injured or killed while off the premises of their owners, and engaged in committing damage to the property of any other person than that of the owner of such dogs, they might be lawfully killed. Rev. St. 1881, § 2648 et seq. The act repealed all laws providing for the taxation of dogs, and all laws or parts of laws in conflict with its provisions. Acts 1881, p. 397. So far as the above section in the act of 1852 allowed the killing of all dogs found off the premises of their owners, it must be deemed to have been repealed by the act of 1881, which permitted the killing of dogs wearing the regulation tags only when off the premises of their owners, and engaged in committing damage to the property of persons other than the owners of such dogs. The act of 1883 dispenses with the tags provided by the act of 1881, and provides for the listing of dogs for taxation. This act provides that any person who shall mischievously or maliciously injure or kill any dog that has been duly listed for taxation shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not exceeding $200, to which may be added imprisonment in the county jail for any term not exceeding 30 days. Acts 1883, p. 149, § 5. There is a proviso in this section that if dogs are injured or killed while engaged in committing damages to the...