Laing v. Com.
| Decision Date | 31 August 1962 |
| Docket Number | No. 5447,5447 |
| Citation | 127 S.E.2d 142,203 Va. 682 |
| Parties | JIM LAING v. COMMONWEALTH OF VIRGINIA. Record |
| Court | Virginia Supreme Court |
Harvey S. Lutins (Honeyman & Lutins, on brief), for the plaintiff in error.
Francis C. Lee, Assistant Attorney General (Robert Y. Button, Attorney General, on brief), for the Commonwealth.
The appellant, Jim Laing, herein referred to as defendant, appeals from a judgment entered by the circuit court finding that the shepherd, or police, dog owned by the defendant was a livestock killer, 'having been found in the act of killing, injuring and worrying sheep,' and ordering that the dog be killed immediately by an officer designated for that purpose.
The proceeding had its origin in a warrant issued by the clerk of the county court of Giles county on the complaint of the dog warden that the defendant, on February 28, 1961, did 'unlawfully possess one sheep killing dog'. While the warrant directed that the defendant be apprehended and brought before the court, he was not in fact arrested but was given a written notice to appear on March 6, 1961, to answer the charge, of which notice he signed an acceptance of service. He appeared on that day with his counsel and the county judge found him guilty 'of possessing a sheep killing dog,' and ordered that the dog be killed and that the defendant pay the cost of the proceeding. He appealed to the circuit court, where he later appeared and requested a continuance to the next term, which was granted.
On his trial at the next term the defendant made a motion that the court dismiss the appeal and quash the proceeding on the grounds that the order of the county court was null and void, and that it was not unlawful to possess a sheep-killing dog and hence the defendant was charged with an act which is neither prohibited nor unlawful. The court overruled the motion, trial by jury was waived, the court heard the evidence and made the finding and entered the judgment above stated.
The defendant does not now complain about the finding and judgment of the trial court. He expressly abandons his assignments of error which allege that the evidence was not sufficient to support the judgment and that the judgment of the county court was a nullity. He rests his appeal, he says, 'solely upon the trial court's failure and refusal to dismiss the defective warrant or to amend same upon the ground that he was charged with an act neither prohibited nor unlawful'.
The charge against the defendant was based on § 29-197 of the Code, as amended, which makes it the duty of the dog warden, and gives the right to any person, to kill forthwith a dog found by him in the act of killing, injuring, worrying or chasing sheep, or killing or injuring other livestock. The owner of the sheep in this case, together with a deputy sheriff, saw defendant's dog in the act of killing the sheep. The owner shot at and wounded the dog, which ran away and returned to the defendant's home. The owner and the officer went to the defendant's home and told him what had occurred. The warrant was issued later that day.
Section 29-197 also provides that a warden or other person who has reason to believe that a dog is committing any of the depredations mentioned in the statute shall apply to a justice of the peace, who shall issue a warrant requiring the owner or custodian to appear before the trial justice [county court], who shall hear evidence and if it be shown that the dog is guilty it shall be ordered killed immediately by the warden or other designated officer. See Willeroy v. Commonwealth, 181 Va. 779, 27 S.E.2d 211, for a discussion of the statute in a different context.
It is apparent that § 29-197 does not, nor does any other section of the Code, make it unlawful to possess a sheep-killing dog. The defendant was not guilty of any crime in so doing, the warrant was improperly drawn, and the act which it charged against the defendant was no criminal offense. The defendant's motion to dismiss it should have been sustained, but the failure of the trial court to do so under the circumstances of this case was harmless error.
The defendant was not in fact charged with any crime and he has not been convicted of any crime. While the county judge found him guilty of possessing a sheep-killing dog, he did not thereby find him guilty of any criminal offense, and the requirement that he pay the cost did not convert the charge into a criminal offense. In any event, the effect of the appeal to the circuit court was to deprive the county court of further jurisdiction and annul its judgment of conviction. Malouf v. City of Roanoke, 177 Va. 846, 855, 13 S.E.2d 319, 322. The hearing before the circuit court was de novo, Code § 16.1-136. That court had full power, on its own motion, to 'amend the form of the warrant in any respect in which it appears to be defective,' or to issue a new warrant, Code § 16.1-137; Ossa v. Town of Appalachia, 137 Va. 795, 119 S.E. 51.
The warrant prescribed by § 29-197 is a warrant requiring the owner or custodian of the dog to appear at the hearing of evidence as to whether the dog was guilty of the depredations mentioned in that section. Its purpose is to give notice to the owner or custodian of the time and place of the proceeding against the dog and an opportunity to be heard in its defense. Cf. § 16.1-129. The warrant in this case was given that effect in the circuit court. The defendant did appear. He heard the evidence against his dog and introduced evidence and...
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Laing v. Com.
...was granted in order to allow Laing to apply for an appeal to this Court. We affirmed the judgment of the trial court. Laing v. Commonwealth, 203 Va. 682, 127 S.E.2d 142, rehearing denied October 8, 1962; cert. denied by the Supreme Court of the United States January 14, 1963, and petition ......