State v. Buford

• Decision Date: 19 November 1958
• Docket Number: No. 6445,6445
• Citation: 65 N.M. 51,1958 NMSC 129,331 P.2d 1110
• Parties: , 82 A.L.R.2d 787 STATE of New Mexico, Plaintiff-Appellant, v. O. C. BUFORD, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 1110

331 P.2d 1110

65 N.M. 51, 82 A.L.R.2d 787

STATE of New Mexico, Plaintiff-Appellant, v. O. C. BUFORD, Defendant-Appellee.

No. 6445.

Supreme Court of New Mexico.

Nov. 19, 1958.

Fred M. Standley, Atty. Gen., Hilton A. Dickson, Jr., Asst. Atty. Gen., Robert F. Pyatt, Asst. Atty. Gen., for appellant.

Joseph O. Walton, Hobbs, for appellee.

McGHEE, Justice.

The Assistant District Attorney of Lea County filed an information charging the defendant (appellee) with violation of the New Mexico Cruelty to Animals Statute, in that, on or about the 21st day of February, 1958, the defendant 'did promote, procure, counsel, and aid a cockfight in which two roosters, or cocks, were permitted and encouraged to engage in combat, armed with artificial spurs, and in which said cocks were permitted and encouraged to inflict dangerous wounds one upon the other at a public exhibition and before a crowd of spectators in Lea County, New Mexico.'

The State now prosecutes this appeal from the action of the trial court in sustaining defendant's motion to quash the information on the ground that the term 'any animal,' as used in the statute, includes gamecocks, but that as a matter of law the language of the statute does not contemplate the fighting of gamecocks in the manner described in the information above.

The sole issue presented is whether or not cockfighting, as above described, comes within the terms of New Mexico's Cruelty to Animals Statute, Sec. 40-4-3, N.M.S.A.1953, which reads in part as follows:

'If any person torture, torment, deprive of necessary sustenance, cruelly beat, mutilate, cruelly kill or overdrive any animal, or unnecessarily fail to provide the same with proper food or drink, or cruelly drive or work the same when unfit for labor, he shall be punished by a fine * * *.' [Emphasis supplied.]

We are concerned primarily with the emphasized portion. The State contends that the fighting of gamecocks, as above described, is torture and torment to animals within the meaning of this statute, whereas the defendant asserts that gamecocks are not animals as that term is used, and that if they are, cockfighting is not proscribed by the statute.

Nowhere in the statutes are the terms 'animal,' 'torture,' or 'torment' defined. Several sister states have, however, provisions specifically defining these terms as used in their cruelty to animal statutes.

'Animal' has been defined to include 'every living creature except men,' or 'the human race,' or 'human beings;' 'every living dumb creature;' 'the whole brute creation,' or 'any domestic animal.' See Sec. 828.02, Fla.Stats.1953, F.S.A.; Art. 27, Sec. 62, Md.Code Ann., 1957; Sec. 614.47, Minn.Stats.1957; Sec. 574.050, Nev.Rev.Stats.1943; Sec. 4:22-15, N.J.Rev.Stats.1937, N.J.S.A.; Sec. 4-1-3, R.I.Gen.Laws 1956; Sec. 40.2201, S.Dak.Code 1939; Sec. 18-108, Va.Code 1950; Sec. 8358, Vt.Stats.Rev.1947; see, also, Budge v. Parsons, 1863, 3 B. & S. 382, 122 Eng.Rep. 145; Bates v. M'Cormick, 1863, 9 L.T. 175, cited in 2 English and Empire Digest 399.

In view of these definitions and the finding of the trial court that 'any animal' includes gamecocks, from which no cross-appeal or cross-error was taken, we assume for purposes of this opinion that the finding is correct. Southern Union Gas Co. v. Cantrell, 1952, 56 N.M. 184, 241 P.2d 1209; Supreme Court Rules 17, subd. 2, 12, subd. 3, Secs. 21-2-1(17)(2), 21-2-1(12)(3), N.M.S.A.1953.

The words 'torture' and 'torment' are commonly defined to include every act, omission, or neglect whereby unjustified physical pain and suffering or death is caused or permitted. State v. Porter, 1893, 112 N.C. 887, 16 S.E. 915; Waters v. People, 1896, 23 Colo. 33, 46 P. 112, 33 L.R.A. 836; Mikell v. Henderson, Fla.1953, 63 So.2d 508 (cases dealing with statutes setting forth specific definitions); see, also, Sec. 828.12, Fla.Stats.1957, F.S.A.; Sec. 40-20-15, Colo.Stats.Ann.1953; Sec. 14-360, N.C.Stats.Ann.1953; Title 14, Sec. 102, La.Rev.Stats.1950, L.S.A.; Art. 27, Sec. 62, Md.Code Ann.1957; Sec. 614.47, Minn.Stats.1957; Sec. 574.050, Nev.Rev.Stats.1943; Sec. 40.2201, S.Dak.Code 1939; Sec. 39-401, Tenn.Code Ann.1955.

Of the above states defining these terms, only Florida, Louisiana, Maryland, and Vermont do not also have specific provisions prohibiting cockfighting, and apparently only Florida has had occasion to consider whether cockfighting comes within their general cruelty to animals statute. Mikell v. Henderson, 1953, supra.

In that case, the court was concerned with two provisions of the Florida statutes, as follows:

Sec. 828.12 'Whoever unnecessarily overloads, overdrives, tortures, torments, deprives of necessary sustenance or shelter, or unnecessarily or cruelly beats, mutilates or kills any animal, or causes the same to be done, or carries in or upon any vehicle, or otherwise, any animal in a cruel or inhuman manner, shall be punished * * *.' [Emphasis supplied.]

Sec. 828.15 'Nothing in 828.12-828.14 shall be construed to apply to poultry shipped on steamboats or other crafts.'

In a declaratory judgment action to determine the validity of the law as applied to breeding and training gamecocks and cockfighting, the court really decided that if cockfighting did come within Sec. 828.12, then the exception created by Sec. 828.15 made the law as applied to cockfighting unreasonable, arbitrary and denied the plaintiff equal protection of the law in that cockfighting on land would be illegal but not if it occurred on a steamboat. Thus, the decision is not a precedent that fighting cocks come within the ban of a cruelty to animals statute. It is further noted that that statute contains the phrase 'or causes the same to be done' and that the Florida legislature specifically defined the meaning of 'torture' and 'torment,' supra, which we think creates a material variation between their statute and ours.

The case of State v. Porter, 1893, 112 N.C. 887, 16 S.E. 915, 916, cited by the appellant, is not in point since their statute forbids the 'willful wounding, injuring, torturing, or tormenting, and the needless mutilation or killing, of any useful beast, fowl, or animal.' Nowhere does the court state the nature of the act done by the defendant, but it said:

'* * * Knowing that men of intelligence and refinement often differ as to what constitutes cruelty in one's treatment of dumb creatures, the legislature has seen fit to define that word, and also the words 'torture' and 'torment,' and has thus made its intent very plain.'

The North Carolina court cited Commonwealth v. Turner, 145 Mass. 296, 14 N.E. 130, 131, holding a person who lets loose a captive fox to be hunted by dogs may be convicted under the Massachusetts statute, Pub.St. c. 207, Sec. 3, which provided in part:

'* * * every owner, possessor, or person having the charge or custody of an animal, * * * or knowingly and willfully authorizes or permits it to be subjected to unnecessary torture, suffering, or cruelty of any kind, shall be punished * * *.'

Notwithstanding the fact that the North Carolina statute includes the word 'fowl' and defines the words 'torture' and 'torment', and the Massachusetts statute uses the words 'authorizes or permits' in addition to the phrase 'causes or procures' in another provision, both states have specific provisions prohibiting cockfighting. Sec. 14-362, N.C.Gen.Stats.1953; c. 272, Sec. 94, Mass.Ann.Laws 1956.

In the case of Waters v. People, 23 Colo. 33, 46 P. 112, cited by appellant, the court held that a member of a gun club, shooting doves from a trap for amusement, was liable under the Colorado cruelty statute, even though the doves which were killed were used for food. The Colorado statute, Mill's Ann.St. Sec. 104, now Sec. 40-20-1, Colo.Rev.Stat.1953, provided:

'Every person who overdrives, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, unnecessarily or cruelly beats, or needlessly mutilates or kills, or carries in or upon any vehicles, or otherwise in a cruel or inhuman manner, any animal, or causes or procures it to be done, or who, having the charge and custody of any animal, unnecessarily fails to provide it with proper food, drink, or protection from the weather, or cruelly abandons it, upon conviction * * *.'

Again the statute is more comprehensive than ours and contains the phrase 'or causes or procures' it to be done. Furthermore, Colorado also has a statute specifically prohibiting cockfighting. Sec. 40-20-4, Colo.Rev.Stats.1953.

Only one American decision has been found which has held that cockfighting was an unlawful activity absent a statute specifically prohibiting it. It is Commonwealth v. Tilton, 1844, 3 Metc., Mass., 232, which is annotated in 3 Eng.Rul. Cases 149. The court declined to pass on the contention that game-cocks are not 'implements' used in gaming, proscribed by an unlawful gaming act prohibiting certain specific gaming activities in inns and 'any other unlawful game or sport', but stated, 8 Metc. at page 234:

'* * * And we are of the opinion, that the game or sport of cockfighting is unlawful, because it is a violation alike of the prohibitions of a statute, and of the plain dictates of the law of humanity, which is at the basis of the common law, and specially recognized in the constitution, which makes it the duty of the legislature 'to countenance and inculcate the principles of humanity.' Const. of Mass. c. 5 Sec. 2. The Rev.Sts. c. 130, Sec. 22, have prohibited cruelty to animals, under penalty of fine and imprisonment. But we think it is prohibited by the principles of the common law, as a cruel and barbarous sport. Lord Ellemborough says, in Squires v. Whisken, 3 Campb. 141, that 'cock-fighting must be considered a barbarous diversion, which ought not to be encouraged or sanctioned in a court of justice.' See also Rex v. Howel, 3 Keb. 510. As being barbarous and cruel, leading to disorder and danger, and tending to deaden the...