Sosat v. The State

• Decision Date: 28 October 1891
• Docket Number: 517
• Citation: 28 N.E. 1017,2 Ind.App. 586
• Parties: SOSAT v. THE STATE
• Court: Indiana Appellate Court

28 N.E. 1017

2 Ind.App. 586

SOSAT v. THE STATE

No. 517

Court of Appeals of Indiana

October 28, 1891

From the Allen Circuit Court.

Judgment affirmed.

H Colerick and W. S. Oppenheim, for appellant.

J. M Robinson, Prosecuting Attorney, for the State.

OPINION

REINHARD, J.

The appellant was tried and convicted for unlawfully, maliciously and mischievously killing a dog, the property of the prosecuting witness. It was not averred that the dog was duly listed for taxation. The appellant insists that the absence of this averment vitiates the charge.

The law of malicious trespass contained in the revision of 1881, is as follows:

"Whoever maliciously or mischievously injures or causes to be injured any property of another, or any public property, is guilty of a malicious trespass, and, upon conviction thereof, shall be fined not more than two-fold the value of the damage done, to which may be added imprisonment in the county jail for not more than twelve months." Section 1955, R. S. 1881.

By the dog law of 1883 (Act of March 7th, 1883), it is provided, in section 5, as follows:

"Any person who shall mischievously or maliciously injure or kill any dog that has been duly listed for taxation, or any person who shall steal, take and carry away any dog that has been duly listed for taxation, according to law, 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 thirty days: Provided, That in all cases such dogs are injured or killed while engaged in committing damages to the property of any other person than the owner of such dogs, or is known to be a dog that will kill or maim sheep, the above provisions shall not apply." Elliott's Supp. section 448.

The appellant's contention is that the statute of malicious trespass no longer applies to the killing or injuring of dogs, having been repealed by implication by the dog law of 1883, and as the charge in this case contains no averment that the dog was duly listed for taxation it must have been predicated upon the general law of malicious trespass, and is, therefore, fatally defective.

Counsel for the State admit that the prosecution was based upon the general malicious trespass act, but contend that the same is not repealed by the later act, and that to kill or injure a dog maliciously or mischievously may be an offence in some instances under either law.

As a general rule, the repeal of statutes by implication is not favored, and it is uniformly held that where two or more statutes upon the same subject may well stand together, it is the duty of the courts to construe them in pari materia. City of Madison v. Smith, 83 Ind. 502; Wright v. Board, etc., 82 Ind. 335; Robinson v. Rippey, 111 Ind. 112, 12 N.E. 141; State v. Wells, 112 Ind. 237, 13 N.E. 722; Wagoner v. State, 90 Ind. 504; Bishop Written Laws, section 154, and notes.

The appellant's counsel contend that if both acts are construed as in force, the result would be that the extreme penalty for killing or injuring a dog not listed for taxation, will be greater than the extreme penalty that may be inflicted for killing or injuring a dog that has been duly listed,--a result that could not have been intended by the Legislature.

On the other hand, it may be said that if the malicious trespass statute does no longer apply to the killing and injuring of dogs, then any person would have the right to go upon the premises of his neighbor, or other person, and, with malice and mischief in his mind, deal out death and destruction to all dogs that may not be listed for taxation, whether the omission to list be lawful or unlawful, and there would be no law to punish such offenders. Such could not have been the intention of the law makers.

An examination of the law of 1883 will show that it does not require that dogs under the age of six months shall be listed for taxation at all; and if that class of animals is not protected by the provisions of the malicious trespass act they would have no protection whatever, and would be at the mercy of any one.

It is true that it has been the policy of the Legislature to discourage by law the production of dogs, in order to encourage the breeding and raising of sheep; and hence sheep-killing dogs have for many years been made the subjects of outlawry. But we do not think the law-makers have ever gone so far as to make lawful the killing of untaxed dogs, unless they were known to be sheep-killers, or were found running at large without the regulation collar and tag. Lowell v. Gathright, 97 Ind. 313; Dinwiddie v. State, 103 Ind. 101, 2 N.E. 290.

By the dog law of 1881, it was expressly provided that it should be lawful for any person to kill a dog found running at large without a tag or collar. Section 2649, R. S. 1881. The act of 1883 does not contain this provision. Both acts make it unlawful to kill or injure, maliciously or injuriously, any dog registered or listed for taxation and (under the act of 1881) wearing the collar and tag. If the act of 1883 makes it lawful to kill or injure an unlisted dog it must be so by implication, upon the principle that what is not included in the definition of the offence is necessarily excluded from it, and that, as the killing and injuring of dogs not listed for taxation is not included in the section creating the offence, it is by implication excluded therefrom, and hence this act, standing by itself, would not make it penal to kill any but a listed dog.

It was held in Kinsman v. State, 77 Ind. 132, that a prosecution for killing a dog would lie under the general malicious trespass statute, the owner of the dog having such a property in the animal as entitles him to the benefits of the provisions of that act. That case was decided, however, at the November term, 1881, of the Supreme Court, and the killing was charged to have been committed on the 12th day of April, 1881, and consequently before either the dog law of 1883, or even that of 1881, had been enacted. The decision could not, therefore, be treated as an authority in this case. It was decided, however, in a later case, that the dog act of 1881 conferred no authority upon any person other than an officer to kill a dog without a collar and tag, unless such dog was running at large, and that such killing might be regarded as a malicious trespass. Lowell v. Gathright, supra.

As the act of 1883 has restricted rather than enlarged the right of persons generally to kill or injure dogs, and as the affirmative right to kill dogs not taxed was expressly eliminated from the act of 1881 by that of 1883, we think it follows conclusively that the Legislature did not intend to confer upon persons generally the right to kill or injure animals of this class, whether listed for taxation or not. These things evince a disposition by the law makers to retain rather than to abrogate the provisions of previous enactments for the protection of such dogs as are not...