State v. Gould
| Decision Date | 03 July 1885 |
| Citation | 26 W.Va. 258 |
| Parties | STATE v. GOULD. |
| Court | West Virginia Supreme Court |
Submitted Jun. 19, 1885.
1. The first part of sec. 1, ch. 74 of Acts of 1875, which provides " that if any person shall over-drive, torture, torment deprive of necessary sustenance, or unnecessarily, or cruelly beat, or needlessly mutilate, or kill any domestic animal, * * * every such offender shall for every such offence be deemed guilty of a misdemeanor," creates seven separate and distinct offences of a similar character. (p. 263.)
2. No two of these several and distinct offences can be united in one count of an indictment without rendering it fatally defective. (p. 263.)
3. But the adding in any one count for over-driving, over-loading or depriving of necessary sustenance or unnecessarily or cruelly beating or needlessly mutilating or killing, the words and torture and torment or either of them, would not cause such count to be fatally defective as including a charge of more than one offence in a single count, the added words torture and torment would be mere surplusage. (p 263.)
4. It is sufficient in describing in an indictment any five of these offences to use the words of the statute " over-drive, over-load, deprive of necessary sustenanse unnecessarily and cruelly beat, or needlessly mutilate and kill," as the case may be, without adding the circumstances or manner, in which the act was done. (p. 262.)
5. But this would not be sufficient in describing the other two offences, torturing or tormenting, but the curcumstances and the manner of the torturing or tormenting, as the case may be, must be stated, as for instance, " killed a domestic animal known as a mule by breaking its hind leg by shooting it with a ball fired from a pistol held in the hand of the accused." (p. 263.)
6. Neither the ownership nor value of the domestic animal need be stated in an indictment under this statute. (p. 264.)
7. An indictment under this statute in the following form is sufficient: " The grand jurors of the State of West Virginia in and for the body of the county of Wood, and now attending said court upon their oaths present, that Stephen Gould on October 13, A. D. 1881, in the said county, did unlawfully and wilfully and cruelly beat, shoot, torture, and otherwise ill-treat a certain beast called a mule, the owner or owners of which said mule is to the grand jurors unknown contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State." In such an indictment the words, " shoot, torture and otherwise ill-treat" and the words " the owner or owners of which said mule is to the grand jurors unknown," are mere surplusage. (p. 265.)
8. In such an indictment it was unnecessary to allege, that the mule was a domestic animal, as the court will take judicial notice, that all mules in this State are domestic animals. (p. 264.)
9. The court in rendering a judgment upon a verdict of guity under this statute, or in rendering judgment against a defendant in any case upon the conviction of him of any misdemeanor, has no right to add to its judgment as a part thereof an order requiring the defendant to give a bond with approved security to keep the peace or be of good behaviour and in default thereof to be imprisoned, till such bond is given. If this be done, the case on writ of error will be reversed, and the proper judgment will be entered by the appellate court without remanding it to the court below. (p. 266.)
Green, Judge, furnishes the following statement of the case:
The grand jury of Wood county on November 14, 1881, found the following indictment:
" The grand jurors of the State of West Virginia in and for the body of the county of Wood, and now attending the said court, upon their oaths present, that Stephen Gould, on October 13, A. D. 1881, in the said county, did unlawfully and wilfully and cruelly beat, shoot, torture, and otherwise ill-treat a certain beast called a mule, the owner or owners of which said mule is to the grand jurors unknown, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State."
On January 11, 1882, the defendant, Stephen Gould, moved the circuit court of Wood county to quash this indictment for errors appearing on its face and also pleaded not guilty, on which issue was joined by the State. At the April term, 1882, of said court the defendant asked leave to withdraw his plea of not guilty and to demurrer to the indictment, which the court refused to allow him to do. Thereupon a jury was sworn to try the issue, who on April 12, 1882, found the defendant guilty and assessed his fine at $50.00. On the next day the defendant moved to arrest his judgment, because the indictment was not sufficient in law. He also moved the court to set aside the verdict and grant him a new trial, because the verdict was contrary to the evidence. Which motion the court overruled and rendered judgment against the defendant for $50.00, the fine assessed by the jury, and for costs; and it further ordered that the defendant enter into bond in the penalty of $500.00 with security in the like sum to be approved by the court conditioned, that the said defendant shall keep the peace and be of good behavior for the term of three years from that date, and that he be taken and kept in custody of the sheriff of said county, until such bond be given. The execution of this judgment was suspended till the first day of the next term of said court, to which time the recognizance of said defendant was enlarged.
A bill of exceptions was taken by the defendant to the judgment of the court in overruling said motions in arrest of judgment and for a new trial and the entering up of said judgment against the defendant, which bill of exceptions certifies all the evidence given at the trial. This evidence proved the following facts. In October, 1881, a mule, whose property not proven, ran down the road in front of the barn of the defendant's father in said county. The defendant called to a colored woman in the road to stop the mule, which she did, and the mule then ran into the barn-yard and then into the barn, and the defendant with a clapboard in his hand followed the mule into the barn, and he was heard across the road striking the mule. The mule then ran out of the barn; the defendant came out of the barn and fired with a revolver at the mule but missed it; he then fired his revolver a second time at the mule, and the ball struck it in the hind leg and broke it. The defendant attempted to have the leg set but it could not be done and the mule was killed. The defendant, when he shot the mule, was behind it and about six yards distant. The defendant obtained a writ of error to the judgment of the court.
In a prosecution under Acts 1875, c. 74, § 1, neither the ownership or value of the domestic animal need be stated in the indictment.
W. L. Cole for plaintiff in error.
Alfred Caldwell, Attorney General, for State.
The first question presented by this record is: Was the indictment sufficient? The indictment is for a violation of sec. 1 of ch. 74 of Acts of 1875, passed December 22, 1875. The section is as follows:
" That if any person shall overdrive, overload, torture, torment, deprive of necessary sustenance, or unnecessarily or cruelly beat, or needlessly mutilate or kill, or cause or procure to be overdrawn, overload, tortured, tormented, or deprived of necessary sustenance, or be unmercifully or cruelly beaten, or needlessly mutilated or killed, as aforesaid, any domestic animal, every such offender shall for every such offence be deemed guilty of a misdemeanor."
The sixth section of said act fixes as a punishment for the commission of this misdemeanor " a fine of not less than $50.00 or imprisonment in the county-jail for not more than ten days or both, at the discretion of the court together with the costs of prosecution." And there is added to this section the following clause: " And should such animal be the property of another the offender shall be liable to the owner thereof in damages in addition to the penalties herein prescribed." This clause, which was obviously an unnecessary addition, serves at least the purpose of showing beyond all dispute, that it is entirely imamterial to constitute this offence, that the accused should be the owner of the domestic animal cruelly treated. The ownership of the animal is totally immaterial. It was decided in Gise v. State, 37 Ark. 456, when the statute made it a misdemeanor to needlessly mutilate or kill & c., any living creature, that no allegation of value or ownership were essential. This is clearly so under our statute. The Attorney General in his argument says, that it has been decided over and over again, that there is no necessity under statutes similar to ours to make any allegations in the indictment whatever in relation to ownership of the animal, to sustain which position he refers to State v. Brocker, 32 Tex. 611; Damell v. State, 6 Tex. Ct. App. 482; Collier v. State, Id. 12; Turner v. State, Id. 586; Commonwealth v. McClellan, 101 Mass. 34, and Commonwealth v. Whitman, 118 Mass. 458. We have not here the Texas reports; but the two Massachusetts cases, which I have examined support the position of the Attorney General. In the first it was held, that an indictment was good, which simply alleged, that the defendant " did cruelly beat a certain horse against the peace of the commonwealth and contrary to the form of the statute; " and in Caldwell v. State, 49 Ala. the indictment was held good, which alleged that the defendant " unlawfully and maliciously disabled and injured a cow the property of John Harrison." And in Minnesota v. Comfort, 22 Minn. an indictment was held...
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