Nehr v. State

• Decision Date: 10 November 1892
• Citation: 53 N.W. 589,35 Neb. 638
• Parties: NEHR v. STATE.
• Court: Nebraska Supreme Court

35 Neb. 638

53 N.W. 589

NEHR

v.STATE.

Supreme Court of Nebraska.

Nov. 10, 1892.

Syllabus by the Court.

1. In this state a dog has a money value, which the owner may recover from one who wrongfully and unlawfully kills his dog.

2. It is the duty of the owner to place upon the neck of his dog “a good and sufficient collar, with a metallic plate thereon, on which shall be plainly inscribed the name of the owner.” If a dog is found running at large without such collar, no action can be maintained for killing the dog.

3. Where a dog leaves the owner's premises, or goes upon the public road, no one having control of him being near, he is running at large, within the meaning of the statute.

4. A dog that persistently assails people passing along a public road in a threatening manner is a nuisance, and may be killed by any person so assailed.

Error to district court, Gage county; BABCOCK, Judge.

David Nehr was convicted of unlawfully, maliciously, and willfully killing another's dog, and brings error. Reversed.Hardy & Wasson, for plaintiff in error.

Geo. H. Hastings, Atty. Gen., for the State.

MAXWELL, C. J.

1. The plaintiff in error was informed against in the county court of Gage county because he did unlawfully, maliciously, and willfully shoot and kill a certain house dog, the property of John A. Dobbs, of the value of $50. He was found guilty in the county court, and appealed to the district court, where he was again found guilty; and the jury also found that the dog was of the value of $1, and the plaintiff in error was sentenced to 5 days' imprisonment in the county jail, and to pay a fine of $2 and the costs. The prosecution was instituted under section 109 of the Criminal Code, which is as follows: “If any person shall willfully and maliciously injure or destroy to any amount less than one hundred dollars any personal property of any description whatsoever, or any building or other structure of any kind, owned by another person, every person so offending shall be imprisoned in the jail of the proper county not exceeding thirty days, and shall, moreover, be fined in double the amount of the damage of the property injured or destroyed.” Section 191, Consol. St., provides: “It shall be the duty of every owner or owners of any dog or dogs to securely place upon the neck of such dog or dogs a good and sufficient collar, with a metallic plate thereon, on which shall be plainly inscribed the name of such owner. It shall be lawful for any person to kill any dog found running at large, on whose neck there is no collar as aforesaid, and no action shall be maintained for such killing.” Section 192: “Every person who shall harbor about his or her premises a collarless dog for the space of ten days shall be taken and held as the owner, and shall be liable for all damages which such dog shall commit.” Section 193: “The owner or owners of any dog or dogs who shall permit the same to run at large for ten days after this act shall take effect without such collar as herein before described being securely placed upon the neck of such dog or dogs, shall be deemed guilty of a misdemeanor, and fined in any sum not exceeding twenty-five dollars, which, when collected, shall be paid to the county treasurer for the benefit of the school fund of the county in which the fine was imposed.” The testimony shows that Mr. Dobbs' house was about 100 feet from the public road; that there was no fence between the house and the road; that the dog was in the habit of running out on the road when persons or teams were passing, and barking furiously; that he had run out in a belligerent manner nearly every time that the plaintiff in error had passed along the road, and at one time had frightened the horses when his wife was driving. All the witnesses agree that the dog was in the habit of going on the road and barking in a threatening manner at teams or persons as they passed. Other witnesses testify that their horses had been frightened by the dog. Jacob Dell, a witness called by the defendant, testified: “Question. Did you know John Dobbs' dog? Answer. Yes, sir. Q. The one that was shot? A. Yes, sir. Q. Tell what you know about his attacking you going by there. A. Well, when I came past with a team he nearly always came out in a vicious, severe manner, just as though he intended to eat something up if he could get hold of it first. My team isn't easily scared. He didn't scare the team very much. He always tackled me...