Hamby v. Samson

• Decision Date: 08 April 1898
• Citation: 74 N.W. 918,105 Iowa 112
• Parties: HAMBY v. SAMSON.
• Court: Iowa Supreme Court

105 Iowa 112

74 N.W. 918

HAMBY

v.SAMSON.

Supreme Court of Iowa.

April 8, 1898.

Appeal from the judgment and order of W. B. Quarton, Judge, Kossuth county.

This is a habeas corpus proceeding, in which plaintiff alleged that he was unlawfully restrained of his liberty by the defendant, who is sheriff of Kossuth county, under a warrant of commitment issued by a justice of the peace of said county on an information charging the plaintiff with the crime of larceny of a dog. The district judge discharged the petitioner, and defendant appeals. Reversed.Raymond & Raymond, for appellant.

Clarke & Cohenour, for appellee.

DEEMER, C. J.

The sole question presented by this appeal is whether or not a dog is the subject of larceny. That it was not at common law is conceded. The reasons for this were twofold: First, because it had no intrinsic value; and, second, because it was not fully domesticated, but by nature base. The courts held that dogs, although reclaimed, could not be used for food, but were kept for the mere whim or pleasure of their owners, and therefore had no intrinsic value. A great deal of research and eloquence has been wasted in attempting to show the fallacy of this rule. It appears to be well settled, however, that, in the absence of statutory modification of the common law, dogs are not the subject of larceny. State v. Lymus, 26 Ohio St. 400;State v. Doe, 79 Ind. 9. When the statute relating to larceny covers “personal property in general,” or “anything of value,” some courts hold that a dog is included, and becomes the subject of larceny. Mullaly v. People, 86 N. Y. 365; Harrington v. Miles, 11 Kan. 480; Hurley v. State, 30 Tex. App. 333, 17 S. W. 455; State v. Yates, 10 Cr. Law Mag. 439. But the cases are by no means harmonious upon this proposition. See Ward v. State, 48 Ala. 161. In some states it is suggested that in subjecting dogs to taxation they are thereby made the subject of larceny under the generic terms “personal property” or “chattels” found in the statutes. Com. v. Hazelwood, 84 Ky. 681, 2 S. W. 489; Mullaly v. People, supra. It is also said by other quite as respectable courts that these taxes are not imposed on the theory that dogs are property, but as police regulations, and therefore such taxation does not bring them within the statute. State v. Doe, and State v. Lymus, supra. See, also, Sentell v. Railroad Co., 17 Sup. Ct. 693, 166 U. S. 698. Our statute (Code 1873, § 3902) makes it a crime for any one to steal any money, goods, or chattels of another; and, if dogs are intended to be included, it must be under the terms “goods and chattels.” That they are not goods is clear. “Chattels,” however, is a broader and more comprehensive term, and includes all kinds of property except the freehold and things which are a parcel of it. The supreme court of Kentucky, in the case of Com. v. Hazelwood, supra, held that a dog was a “chattel,” basing its holding upon the thought that the laws of that state recognized dogs as property, for the reason that they imposed a tax upon them, made the owner liable for damages done, and recognized the animal as property in all civil proceedings. But the supreme court of Pennsylvania, in the case of Findlay v. Bear, 8 Serg. & R. 571, held to exactly the contrary doctrine. See, also, Reg. v. Robinson, 28 Law J. Mag. Cases, 58. Those courts which hold that a dog is not “personal property,” a “thing of value,” or a “chattel” bottom their conclusion upon the assumption that it is not property in the strict sense of the term, and that dogs as a class have no intrinsic value. In the case of Warren v. State, 1 G. Greene, 106, we held that a raccoon was feræ naturæ, and of so base a nature, in contemplation of law, as that one who stole it was not guilty of a larceny; citing Norton v. Ladd, 5 N. H. 204. But in the subsequent case of Anson v. Dwight, 18 Iowa, 241, which was, it is true, a civil case, we said, “Dogs may be personal property, and have value.” Neither of these cases decides the question now before us, although it must be conceded that, if we follow the rule of the Warren Case to its logical conclusion, and hold that the terms “goods and chattels,” as used...