State v. Falkenham

• Decision Date: 20 February 1891
• Citation: 21 A. 370,73 Md. 463
• Parties: STATE v. FALKENHAM.
• Court: Maryland Court of Appeals

21 A. 370

73 Md. 463

STATE v. FALKENHAM.

Court of Appeals of Maryland

February 20, 1891

Error to criminal court of Baltimore city.

Atty. Gen. Whyte, C. G. Kerr, and Louis Hochheimer, for appellant.

MILLER J.

Falkenham was indicted in the criminal court of Baltimore under the recent act of 1890, c. 198, "in relation to cruelty to animals." The indictment is very brief, and simply charges that on the 4th of October, 1890, he, "with force and arms, at the city aforesaid, unlawfully and willfully did then and there engage in an act of cruelty to a certain animal, to-wit, a horse, contrary to the form of the act of assembly in such case made and provided, and against the peace, government, and dignity of the state." To this a general demurrer was interposed, which the court sustained, quashed the indictment, and gave judgment discharging the defendant. The state's attorney thereupon filed a petition to have the record of the case removed to this court as upon writ of error. This application was allowed, and the case is accordingly before us for review. It has been argued on the part of the state, but no counsel has appeared on behalf of the defendant. In the petition for removal the errors assigned are (1) that the court gave judgment sustaining a demurrer to the indictment; (2) that by said judgment the court determined that said indictment was insufficient in law, whereas the same was in all respects good and sufficient; and (3) that in thus sustaining the demurrer the court ruled that an indictment will not lie in Baltimore city for the matters charged in said indictment whereas, under the act of 1890, c. 198, such indictment will lie. The last assignment of error is the most important because we understand from it that the learned judge of the court below took the view that the local law of Baltimore city, (1 Code Pub. Local Laws, art. 4, § 242,) codified from the act of 1880, c. 129, is the only law under which an indictment of this character can be framed. This section provides that "whoever shall unnecessarily overdrive overwork, torture, torment, deprive of necessary sustenance cruelly or unnecessarily beat, cruelly mutilate, or cruelly kill, or cause or procure to be so unnecessarily overdriven, overloaded, overworked, tortured, tormented, deprived of necessary sustenance, cruelly or unnecessarily beaten, mutilated, or killed, any horse, ox, or other animal, shall be punished" by a certain fine of not less than five nor more than twenty dollars. It may well be that the indictment would be defective if it were framed under this local law, and there were no other statute to support it. But, as we have said, it was framed under the act of 1890, c. 198. This act, it must be observed, was passed not only long after the local act of 1880, c. 129, but after the adoption of the Code of Public Local Laws. It is a general law on the subject of cruelty to animals, applicable to the whole state. By its first section it provides "that any person who willfully sets on foot, instigates, engages in, or in any ways furthers any act of cruelty to any animal, or any act tending to produce such cruelty, or by any act, conduct, neglect, or omission willfully causes, permits, or suffers any animal to undergo any species of torture or cruelty, shall be deemed guilty of a misdemeanor;" and the second section declares "that the words 'torture' or 'cruelty' shall be held to include every thing whereby unjustifiable physical pain, suffering, or death is caused or permitted, and the word 'animal' shall be held to include every living creature except man." The legislature has thus declared its will in the most comprehensive terms No specific penalty is attached as in the local law; but it is left to the courts to impose the common-law punishment of fine, or imprisonment in jail, or both, according to the...