State v. Bossee

• Decision Date: 11 December 1907
• Citation: 145 N.C. 579,59 S.E. 879
• Parties: STATE. v. BOSSEE.
• Court: North Carolina Supreme Court

59 S.E. 879

145 N.C. 579

STATE.

v.BOSSEE.

Supreme Court of North Carolina.

Dec. 11, 1907.

1. Animals—Cruelty — Statutory Regulations.

Revisal 1905, § 3299, relating to cruelty to animals, enumerates as subjects protected from cruelty any useful beast, fowl, or animal, and provides that the words "torture, " "torment, " or "cruelty" shall include every act, omission, or neglect whereby unjustifiable physical pain, suffering, or death is permitted. Held, that poisoning chickens is within the purview of the statute.

2. Criminal Law — Cruelty to Animals — Prosecution—Jurisdiction of Court.

Under Revisal 1905, § 3299, fixing the punishment for cruelty to animals at not more than $50 fine or 30 days imprisonment, the justice of the peace, and not the superior court, has jurisdiction of such offense.

3. Same — Appeal — Raising Objection Below—Objection to Jurisdiction.

Under the express provisions of court ride 27 (53 S. E. viii), a defect of jurisdiction of the trial court in a criminal case may be raised for the first time on appeal, and may be considered though not called to the Appellate Court's attention.

Appeal from Superior Court, Transylvania County; Guion, Judge.

W. T. Bossee was charged with cruelty to animals. From a ruling adverse to the state, it appeals. Action dismissed.

Assistant Attorney General Clement, for the State.

CLARK, C. J. The charge against the defendant is set out in proper form, under Revisal 1905, § 3299, for cruelty to animals, in poisoning a chicken the property of the prosecutor. That section enumerates as sub jects protected from cruelty "any useful beast, fowl, or animal." It also provides that the words "torture, " "torment, " or "cruelty" shall "include every act, omission, or neglect whereby unjustifiable physical pain, suffering, or death is caused or permitted." It is clear therefore that poisoning chickens comes within the purview of the statute, as is held in State v. Neal, 120 N. C. 618-620, 27 S. E. 81, 84 (58 Am. St. Rep. 810) citing State v. Butts, 92 N. C. 784; Johnson V. Patterson, 14 Conn. 1, 35 Am. Dec. 96, where a neighbor's chickens were killed by strewing poisoned meal on one's own premises; and Clark v. Keliher, 107 Mass. 406, where the defendant killed a neighbor's chickens while trespassing, and many other cases.

But we are precluded from going beyond the form of the indictment and passing upon the question whether the defendant is guilty upon the facts found in the special verdict in this case, because Mr. Clement, the Assistant Attorney General, has frankly and most properly called our attention to the fact that this action originated in the superior court, which, under the statute as it now reads, has no original jurisdiction of this offense. Laws 1891, p. 71, c. 65, amending Code 1883. §§ 2482, 2489, fixed the punishment at "not more than $50 fine or 30 days' imprisonment or both." As this might exceed the jurisdiction of a justice of the peace as prescribed by Const, art. 4, § 27, the jurisdiction was vested in the...