State v. Churchill

• Decision Date: 02 January 1909
• Citation: 98 P. 853,15 Idaho 645
• Parties: STATE, Respondent, v. L. CHURCHILL, Appellant
• Court: Idaho Supreme Court

98 P. 853

15 Idaho 645

STATE, Respondent, v. L. CHURCHILL, Appellant

Supreme Court of Idaho

January 2, 1909

MALICIOUS MISCHIEF-MALICIOUS KILLING AND MAIMING DOGS-CRIMINAL INTENT-TRESPASSING DOGS.

1. In a prosecution under sec. 7153, Rev. Stat., for the malicious killing, maiming or wounding of a dog, malice is the gist of the action, and must be established to the satisfaction of the jury beyond a reasonable doubt, in order to justify a conviction.

2. In a prosecution for maliciously killing, wounding or maiming dogs, the state must either show that the defendant entertained malice against the owner of the dogs, or that the killing, wounding or maiming was characterized by such wanton and reckless disregard of the rights of property in others as to raise the presumption of malice from the manner of the commission of the act.

3. Where trespassing dogs are chasing, worrying and frightening hogs and cattle, the owner of the premises in attempting to remove and eject the dogs therefrom has a right to act upon appearances. In other words, if there is apparent impending danger to his livestock, he is justified in the use of such force in ejecting the dogs as a reasonably prudent man would use under like circumstances in defense and protection of his property.

4. ID.-In such case the evidence of experts as to the habits and traits of the particular breed of dogs to the effect that they would not in fact harm or injure domestic animals is inadmissible, where the evidence as to the occurrence is direct and not circumstantial, unless it appear that the defendant at the time had knowledge of such habits and traits.

5. The rule applicable in civil actions for damages, allowing the introduction of evidence showing the pedigree, traits, habits and reputation of the particular dog killed, is not applicable in a criminal prosecution for maliciously killing dogs, unless knowledge of such facts is brought home to the defendant.

6. Even where defendant had knowledge of the traits and habits of the particular breed of dogs, and that such dog would not in fact kill or maim a domestic animal, if in fact the dog was at the time harassing, worrying and annoying gravid animals in such a manner as would likely cause his pecuniary loss, he will be justified in using such force as is necessary to eject the dogs from the premises and cause a cessation of the injuries.

7. Where it clearly appears that the defendant was not acquainted with the owner of the dogs, and did not in fact know who was their owner, and in wounding and killing the dogs was not actuated by malice or a wanton or reckless spirit, but acted solely through a desire to remove the dogs from his premises, and to prevent their worrying annoying and terrorizing his livestock, he cannot be held criminally liable for malicious mischief.

(Syllabus by the court.)

APPEAL from the District Court of the Seventh Judicial District, for the County of Washington. Hon. Ed. L. Bryan, Judge.

Prosecution for malicious mischief in killing, wounding and maiming dogs. From a judgment of conviction and an order denying a motion for a new trial, defendant appeals. Reversed.

Judgment reversed and a new trial granted.

Lot L Feltham, and B. S. Varian, for Appellant.

The distinction between trespass and malicious trespass must be carefully maintained, or else an act done in defense of person or property upon serious provocation may nevertheless amount to a criminal offense. Such is not the intent of the statute, and hence a prosecution must fail where the proof fails to show malice toward the owner of the property. Therefore, a justification which shows a want of malice excuses the act committed, in so far as criminality is concerned. (First Nat. Bank v. Burkett, 101 Ill 391, 40 Am. Rep. 209; 2 Wharton's Crim. Law, sec. 1068; Gaskill v. State, 56 Ind. 550; Northcot v. State, 43 Ala. 330; Hobson v. State, 44 Ala. 380; Wright v. State, 30 Ga. 327, 76 Am. Dec. 656; Commonwealth v. Shafer, 32 Pa. Super. Ct. 375; Duncan v. State, 49 Miss. 331.) Evidence of justification upon a charge of malicious mischief is, as a natural result of the rule requiring the existence of malice, a sufficient defense upon the trial, as tending to disprove the criminal intent. It is proper, therefore, for the accused to show, that at the time of the commission of the act he stood in fear and apprehension of impending injury to his own property, and that the act charged was reasonably necessary to prevent or avert such injury. (State v. Robinson, 3 Dev. & B. 130, 32 Am. Dec. 669, note; Wright v. State, supra; State v. Graham, 46 Mo. 490; Bishop on Statutory Crimes, secs. 436, 437.)

Dogs chasing animals can be killed. (Anderson v. Smith, 7 Ill.App. 354; Barrett v. Utley, 12 Bush, 399; Leonard v. Wilkins, 9 Johns. 235; Boecher v. Lutz, 13 Daly, 28; Woolf v. Chalker, 31 Conn. 121, 81 Am. Dec. 175; State v. Marshall, 13 Tex. 55; Patten v. State, 93 Ga. 111, 19 S.E. 734, 24 L. R. A. 732; Davis v. Commonwealth, 17 Gratt. 617; State v. Mease, 69 Mo.App. 581; State v. Giles, 125 Ind. 124, 25 N.E. 159.)

Malice against the owner or possessor of the property injured or destroyed must be shown, and proof of malice toward the property itself or toward any other person is not sufficient. (1 Am. & Eng. Ann. Cas., p. 494, note, and cases cited; Commonwealth v. Shafer, 32 Pa. Super. Ct. 375.) The question of justification would be an issue in an action for damages against defendant, but on this complaint the issue was malice or no malice. If he shot from the motive of protecting his stock, and not from either ill-will to the owner or cruelty to the animals, his motive was not malicious, whether it was justified or not, and his act was not malicious mischief. (Wright v. State, 30 Ga. 325, 76 Am. Dec. 656; Thomas v. State, 30 Ark. 433; State v. Willcox, 3 Yerg. (Tenn.), 278, 24 Am. Dec. 569.) In a prosecution for malicious mischief, malice toward the owner of the property injured must be averred and found. It will not be inferred from a merely injurious act, such as killing the animal of another. (State v. Newby, 64 N.C. 23.)

J. J. Guheen, Attorney General, and B. S. Crow, for Respondent.

The construction to be placed on "malicious," as used in our statutes, is not a feeling of ill-will toward any particular person, but "an intent to do a wrongful act, established either by proof or presumption of law." Such statutes are enacted with the object of denouncing and punishing certain injuries to property unlawfully, intentionally or wantonly done, and it is of no importance whether or not the offender knew who was the owner of the property destroyed. (Territory v. Crozier, 6 Dak. 8, 50 N.W. 124; State v. Coleman, 29 Utah 417, 82 P. 465; Roe v. State, 82 Ala. 68, 3 So. 2; Mosely v. State, 28 Ga. 190; State v. Hambleton, 22 Mo. 452; Brown v. State, 26 Ohio St. 176; State v. Toney, 15 S.C. 409; Manes v. State, 20 Tex. 38; State v. Roscum, 128 Iowa 509, 104 N.W. 800; State v. Dowdell, 106 La. 645, 31 So. 151; Funderburk v. State, 75 Miss. 20, 21 So. 658; State v. Gilligan, 23 R. I. 400, 50 A. 844; Ex parte Mauch, 134 Cal. 500, 66 P. 734.) The malice is inferred from the act itself, and the manner of committing it. (People v. Burkhardt, 72 Mich. 172, 40 N.W. 240; People v. Petherman, 64 Mich. 252, 31 N.W. 188; Wallace v. State, 30 Tex. 758.)

The mere fact that animals are trespassers gives no right to the land owner to injure or destroy them. (Snap v. People, 19 Ill. 80, 68 Am. Dec. 582; State v. Rivers, 90 N.C. 738; Sosat v. State, 2 Ind.App. 586, 28 N.E. 1017; McChesney v. Wilson, 132 Mich. 252, 93 N.W. 627; Brookerson v. State, 49 Tex. Cr. 421, 93 S.W. 725.) The reasonable necessity for killing a trespassing dog is a question for the jury under all the facts and circumstances of the case. (Hodges v. Causey, 77 Miss. 353, 78 Am. St. Rep. 525, 26 So. 945, 48 L. R. A. 95.)

The testimony as to the character and habits of the hounds is proper testimony to go before a jury, and was entitled to whatever weight the jury desired to give to it, as rebutting defendant's testimony. (1 Wigmore, Ev., sec. 68; 1 Jones, Ev., sec. 162.)

AILSHIE, C. J. Sullivan, J., concurs, Stewart, J., concurs in the conclusion.

OPINION

AILSHIE, C. J.

The defendant was prosecuted on the charge of malicious mischief for shooting, maiming and killing dogs belonging to one John A. Kelly, the complaining witness. The jury returned a verdict against the defendant and he was thereupon sentenced to pay a fine. He moved for a new trial and his motion was denied, and he thereupon appealed from the judgment and order denying his motion. This prosecution is founded on sec. 7153, Rev. Stat., which is as follows:

"Every person who maliciously kills, maims or wounds any animal, the property of another, or who maliciously and cruelly beats, tortures or injures any animal, whether belonging to himself or another, is guilty of a misdemeanor."

The chief contention urged is that the evidence wholly fails to establish malice. In the consideration of both the facts and the law in the case, it should be borne in mind that this is a criminal prosecution, and not a civil action for damages, and what may hereafter be said in this opinion will be with special reference to the status of the defendant in his conduct toward the dogs as viewed by the criminal law.

It appears that on January 12, 1908, the complaining witness Kelly, started out with a pack of thirteen hounds to hunt coyotes. The defendant, his wife and two hired men testified that sometime before noon that day a number of these hounds came on to his place and ran through his corral and barn lot, apparently chasing after his cattle and hogs, and frightening the cows and likewise the hogs; that defendant chased the dogs away...