Rockwell v. Oakland Circuit Judge

• Decision Date: 21 April 1903
• Citation: 133 Mich. 11,94 N.W. 378
• Court: Michigan Supreme Court
• Parties: ROCKWELL v. OAKLAND CIRCUIT JUDGE.

94 N.W. 378

133 Mich. 11

ROCKWELL v. OAKLAND CIRCUIT JUDGE.

Supreme Court of Michigan

April 21, 1903

Mandamus by Kleber P. Rockwell against the Oakland circuit judge. Writ granted.

H. M Zimmermann, for relator.

Edward A. Barnes and U. Grant Race, for respondent.

HOOKER C.J.

The relator is prosecuting attorney for the county of Oakland and asks a mandamus requiring the respondent, a circuit judge, to vacate an order quashing an information charging the larceny of a dog, which order was based upon the claim by the respondent that a dog is not the subject of larceny in this state.

In most of our states, larceny has become an offense of statutory definition. Thus, in some states it is provided that one who steals the personal property of another shall be punished etc. The constitutes one class. In our own and other states the provision is that 'every person who shall commit the offence of larceny, by stealing of the property of another any money, goods or chattels, etc., shall be punished.' 3 Comp. Laws, � 11,553. This constitutes another class. In several of the states, these provisions have been construed to include dogs.

Of those of the former class, the following are illustrations:

In Harrington v. Miles, 11 Kan. 484, 15 Am. Rep. 355, Mr. Justice Brewer said that a dog was the subject of larceny under a statute which made punishable, as such, 'the taking and carrying away of any money, goods, rights in action, or other personal property, or valuable think whatever.' The writer said: 'Now, if a dog is personal property, or a thing of value, it would seem that the stealing of one would be larceny within the statute.'

In Mullaly v. People, 86 N.Y. 365, one was held to have been lawfully convicted under a statute which provided that 'every person who shall be convicted of stealing the personal property of another,' etc., shall be punished.

Of the latter class, the following will be found in point:

In Com. v. Hazelwood, 84 Ky. 683, 2 S.W. 489, it was held that a dog was a subject of larceny under a statute providing for the punishment of those who steal 'goods and chattels.'

The same was held in State v. Brown, 9 Baxt. 53, 40 Am. Rep. 81, where it was said that the terms 'personal property' and 'goods and chattels' are convertible.

The case of Hamby v. Samson (Iowa) 74 N.W. 918, 40 L. R. A. 508, 67 Am. St. Rep. 285, is substantially like the case before us, our statute being similar to that of Iowa.

In all of these cases, mention is made of the fact that property in dogs has been recognized by the legislatures, and they decline to follow the hard and fast rule adhered to in the case of State v. Lymus, 26 Ohio St. 400, 20 Am. Rep. 772, which is the strongest authority cited in favor of the defendant.

The case of State v. Doe, 79 Ind. 9, 41 Am. Rep. 599, is plainly distinguishable, for the court there draws an inference, from certain legislation mentioned, that the statute defining larceny was not meant to include dogs.

An inferior Ohio court has, since the decision in State v Lymus, supra, sustained a charge for stealing a dog, after a modification of the statute was made, by adding to the term 'personal...