State v. Arbogast, C

• Decision Date: 21 February 1950
• Docket Number: No. C,C
• Citation: 133 W.Va. 672,57 S.E.2d 715
• Court: West Virginia Supreme Court
• Parties: STATE, v. ARBOGAST. C. 760.

Page 715

57 S.E.2d 715

133 W.Va. 672

STATE, v. ARBOGAST.

No. C. C. 760.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 1, 1950.

Decided Feb. 21, 1950.

Syllabus by the Court.

1. At common law a dog could not be the subject of larceny.

2. The Legislature of this State has not changed the common law rule as applied to dogs under eight months of age.

3. An indictment charging larceny of a dog, alleging the dog to be seven months of age, is demurrable.

William C. Marland, Atty. Gen., Thomas J. Gillooly, Asst. Atty. Gen., George M. Kittle, Pros. Atty. of Barbour County, Philippi, for plaintiff.

Wm. T. George, Sr., Philippi, Wm. T. George, Jr., Philippi, for defendant.

GIVEN, Judge.

At the May, 1949, term of the Circuit Court of Barbour County the grand jury returned an indictment against the defendant Herbert Arbogast charging larceny of a dog 'aged seven months, of the value of one hundred dollars ($100.00) of the goods and chattels of one Woodrow Flint,'. The defendant filed a demurrer and motion to quash the indictment. The trial court overruled the demurrer and motion to quash and, upon joint application of the parties, certified to this Court the following questions:

'1. Are the allegations in the indictment which charges the age of the dog alleged to have been stolen to be seven months, and of the value of $100.00, sufficient in law to make said indictment valid?

'2. Is it necessary under the law to make a dog personal property, such as will be subject to the crime of larceny for an indictment, that the dog must be at least eight months old and the owner thereof having had him assessed as personal property?

'3. Is it necessary, in an indictment charging the larceny of a dog, to aver in said indictment that the dog was at least eight months of age and had been declared as personal property by the owner by having said dog assessed as personal property?'

The common law rule was that a dog could not be the subject of larceny. State v. Blake, 95 W. Va. 467, 121 S.E. 488; Anderson v. Commonwealth, 182 Va. 560, 29 S.E.2d 838. The State concedes this to be the common law rule. The reasons given for the rule are many and varied, none of which seem logical or sound at this time. It was said that the dog was base and of no intrinsic value, yet its owner could maintain suit for its possession or one could be guilty of larceny of its hide. The usefulness of the dog now makes it one of the most valuable animals to man. Few if any would say that dogs are of no intrinsic value or that they should be outlawed. In State v. Langford, 55 S.C. 322, 33 S.E. 370, 371, 74 Am.St.Rep. 746, we find the following statement: '* * * When we are told that the Greeks and Romans employed dogs in war, armed with spiked collars, and that Corinth was saved by war dogs, which attached and checked the enemy until the sleeping garrison were aroused, we better understand Shakespeare's Antony when he said, 'Cry havoc, and let slip the dogs of war.' We should not let contempt for sheep-killing dogs and our dread of hydrophobia do injustice to the noble Newfoundland, that braves the water to rescue the drowning child; to the Esquimaux dog, the burden-bearer of the Arctic regions; to the sheep dog, that guards the shepherd's flocks, and makes sheep raising possible in some countries; to the St. Bernard dog, trained to rescue travelers lost or buried in the snows of the Alps; to the swift and docile greyhound; to the package-carrying spaniel; to the sagacious setters and pointers through whose eager aid tables are supplied with the game of the season; to the fleet fox hound, whose music, when opening on the fleeing fox, is sweet to many ears; to the faithful watch dog, whose honest bark, as Byron says, bays 'deep-mouthed welcome as we draw near home'; to the rat-exterminating terrier; to the wakeful fice, which the burglar dreads more than he does the sleeping master; to even the pug, whose very ugliness inspires the adoration of the mistress; to the brag possum dog and coon dog, for which the owner will fight if imposed upon; and, lastly, to the pet dog and playmate of the American boy, to say nothing of the 'yaller dog' that defies legislatures. Of all animals,...