State v. Pemberton

• Citation: 151 S.W.2d 111,235 Mo.App. 1128
• Parties: STATE OF MISSOURI, RESPONDENT, v. SAM M. PEMBERTON, APPELLANT
• Decision Date: 07 April 1941
• Court: Court of Appeals of Kansas

151 S.W.2d 111

235 Mo.App. 1128

STATE OF MISSOURI, RESPONDENT, v. SAM M. PEMBERTON, APPELLANT

Court of Appeals of Missouri, Kansas City

April 7, 1941

Rehearing Denied 235 Mo.App. 1128 at 1138.

Appeal from Circuit Court of Boone County.--Hon. W. M. Dinwiddie Judge.

REVERSED.

Judgment reversed.

Edwin C. Orr for respondent.

(1) The information is sufficient to charge an offense under Sec 12880, R. S. 1929. (a) The information properly alleges the adoption of the "dog law." State v. Dugan, 110 Mo. 138; State v. Searcy, 39 Mo.App. 393. (b) The information charges the violation of this section in the words of the statute, and there is no requirement that the exceptions which appear in different paragraphs of the statute be negatived in the charge lodged against the defendant. Secs. 12878, 12879, 12880, R. S. 1929; State v. Brown, 306 Mo. 532, 267 S.W. 864; State v. Smith, 56 S.W.2d 39, 332 Mo. 44; State v. DeGroat, 259 Mo. 364; State v. Doerring, 194 Mo. 398; State v. Buford, 10 Mo. 703; State v. Shiflett, 20 Mo. 415; State v. Cox, 32 Mo. 566; State v. Bockstruck, 136 Mo. 335; State v. Williams, 296 S.W. 155; State v. Saak, 269 Mo. 234; State v. Smith, 233 Mo. 254; State v. Barr, 30 Mo.App. 498. (2) The court did not err in refusing to give defendant's peremptory instruction at the close of all the evidence in the case finding the defendant not guilty as charged. (3) The local option dog law was properly adopted in Boone County, Missouri. Sec. 12889, R. S. 1929; State v. Searcy, 39 Mo.App. 393; State v. McCord, 207 Mo. 519, 106 S.W. 27, 123 Am. St. Rep. 410; State v. Dugan, 110 Mo. 138; State ex rel. v. Weatherby, 45 Mo. 17; Snoddy v. Pettis County, 45 Mo. 361; State v. Evans, 83 Mo. 319; State ex rel. v. Young, 84 Mo. 90; Bine v. Jackson County, 266 Mo. 228; State v. Bubenyak, 331 Mo. 549, 56 S.W.2d 43; State v. Randazzo, 318 Mo. 761, 300 S.W. 755; State ex rel. v. Mitchell, 139 Mo.App. 40; State ex rel. Ryan v. Wooten, 139 App. 231; State v. Searcy, 111 Mo. 236; Yowell v. Mace, 221 Mo.App. 85.

Don C. Carter for appellant.

(1) The first amended information filed in this cause by the State, and upon which defendant was tried, does not state any offense against the laws of this State. State v. Kirby, 115 Mo. 447; State v. Miller, 132 Mo. 300; State v. Hesseltine, 130 Mo. 474; State v. Houx, 109 Mo. 658; State v. Emerick, 87 Mo. 115; State v. Harmon, 106 Mo. 654; State v. Cox, 318 Mo. 657; State v. Barnes, 281 Mo. 514. (2) "The court erred in refusing to give defendant's peremptory instruction to find the defendant not guilty at the close of all the evidence in the case." (3) The "Dog Tax Law," Article 12, Chapter 88, R. S. of Missouri for 1929, as amended by Acts of the Legislature of Missouri for 1937, p. 224, secs. 12872 to 12874-c, inclusive; White v. Brim, 48 Mo.App. 111; State v. Searcy, 39 Mo.App. 393; State v. Mackin, 41 Mo.App. 99; State v. Prather, 41 Mo.App. 451; Rousey v. Wood, 57 Mo.App. 650; Yowell v. Mace, 221 Mo.App. 85; State ex rel. Crow v. Page, 107 Mo.App. 213; State v. Smith, 38 Mo.App. 618; State ex rel. Harrah v. Cauthorn, 40 Mo.App. 94; State ex rel. Campbell v. Heege, 37 Mo.App. 338; State v. Searcy, 46 Mo.App. 421; State v. Prather, 41 Mo.App. 451; State v. Machin, 41 Mo.App. 99; State ex rel. v. Bird, 108 Mo.App. 163; Rousey v. Wood, 63 Mo.App. 465; State ex rel. v. Fort, 107 Mo.App. 328; Weber v. Lane, 99 Mo.App. 80-81; State ex rel. v. Seibert, 97 Mo.App. 212; State ex rel. v. Higgins, 71 Mo.App. 184-185; State ex rel. v. Juden, 217 Mo.App. 685; State ex rel. v. County Court, 90 Mo. 593; State ex rel. v. Carter, 257 Mo. 52; Bine v. Jackson Co., 266 Mo. 228; State v. Dugan, 110 Mo. 138; State v. Gamma, 149 Mo.App. 694; State v. Robertson, 142 Mo.App. 38; State v. Edwards, 192 Mo.App. 413; State v. Foreman, 121 Mo.App. 502; State ex rel. v. County Court, 66 Mo.App. 96; State ex rel. v. Forrest, 177 Mo.App. 245; State ex rel. v. Judges County Court, 220 Mo.App. 232.

SHAIN, P. J. Bland, J., concurs; Cave, J., not sitting.

OPINION

SHAIN, P. J.

--In this proceeding Article 13, Revised Statutes of Missouri, 1939, is involved. The subject-matter of aforesaid article is "Dogs."

In Section 14555 of the article, the term "dog" is defined as follows:

"Sec. 1455. Word 'dog' defined. The word 'dog' whenever used in this article without qualifications, is intended to mean a female as well as a male dog over six months of age. (R. S. 1929, sec. 12878)."

In our judicial consideration we must adhere to the legislative definition. Missourians, by reason of sentimental folk poetry and song, generally attribute to the term "dog" the appellation "hound."

Regardless of the fact that, by legislative mandate, Missouri courts are out of politics, we hope that the legislative definition in Article 13 will not be construed to take out all of the sentiment associated with the term. The term "dog" to a Missourian brings the thought of faith and devotion and brings visions of the deceased master's dog pathetically guarding his master's grave. However, the cold statute confronts us and a dog is a dog, whether hound, Collie or just dog, if it has attained the age of six months and, as to all canines under that age the appellation of "pup," a term variously applied, must suffice. In the case at bar we are further removed from sentiment by reason of the fact that the term "dog" in the article is associated with the term "tax" and no such association arises in poetry or song and is foreign to the association generally found in orations and in judicial opinion. Our preliminary remarks are called forth for the reason that the issue herein presents a question of first impression which involves the question as to whether or not a dog be or not be a dog in legal contemplation of the question as to whether the defendant in the information filed has been legally informed of the offense with which he is charged.

The defendant, the appellant herein, in his brief states as follows:

"On August 23rd, 1939, in vacation before the October Term, 1939, of the Circuit Court of Boone County, Missouri, the prosecuting attorney of Boone County, Missouri, filed an information in the office of the clerk of said court, charging the defendant, Sam M. Pemberton, with the offense of suffering and permitting a dog to remain upon his farm, in Boone County, Missouri, without having caused said dog to be listed and the tax paid on it."

The defendant was arrested and plead not guilty and duly gave bond. Thereafter, defendant duly appeared at the regular October Term, 1939, of the Boone County Circuit Court. Thereafter, and at said term, the prosecuting attorney, by leave of court, filed an amended information.

The amended information is in words and figures as follows:

"Comes now Edwin C. Orr, Prosecuting Attorney, within and for the County of Boone and State of Missouri, leave of Court first had and obtained and files this his first amended information, and upon his official oath informs the Court that on November 8, 1938, the Dog Tax Law, to-wit, Article 12, Chapter 88, Revised Statutes, Missouri, 1929, as amended by the Legislature of Missouri, Session Acts, 1937, by House Bill No. 140 entitled 'Domestic and other animals; Relating to a tax on Dogs' consisting of Sections 12872 to 12874-c, both inclusive, approved June 24, 1937, was adopted by Boone County, Missouri, at the general election on the eighth day of November, 1938, and was put in force in said County on November 19, 1938, and was thereafter and at all times mentioned herein in force and was the law in Boone County, Missouri, and was the law and in force in Boone County, Missouri, on and after the seventeenth day of August, 1939; and the said Edwin C. Orr further informs the Court that Sam M. Pemberton on or about the seventeenth day of August, 1939, at and in the County of Boone and State of Missouri, did wilfully and unlawfully suffer and permit one male Collie dog then and there being the property of one Millard Pemberton, to remain upon the farm of the said Sam M. Pemberton under the immediate control of the said Sam M. Pemberton without having caused said dog to be listed and a tax thereon to be paid; contrary to the statutes in such cases made and provided; against the peace and dignity of the State.

"EDWIN C. ORR,

"Prosecuting Attorney.

"Edwin C. Orr, Prosecuting Attorney of Boone County, Missouri, makes oath and says that the facts stated in the above and foregoing information are true according to his best information and belief.

"EDWIN C. ORR,

"Prosecuting Attorney.

"Subscribed and sworn to before me this 22nd day of November, 1939.

"(SEAL) FLOYD ROBERTS,

"Clerk of Circuit Court."

Trial was before court, the defendant was found guilty, judgment in accordance and defendant duly appealed.

The defendant in assignment of errors specifically charges errors as follows:

"I"

"Because the first amended information filed in this cause by the State, and upon which defendant was tried, does not state any offense against the laws of this State. And said first amended information does not charge any offense under what is commonly called the 'Dog Tax Law,' Article 12 Chapter 88, Revised Statutes of Missouri for 1929, as amended by Acts of the Legislature of Missouri for 1937, page 224, Sections 12872 to 12874-c, inclusive, approved June 24th, 1937."

"II"

"Because the court erred in refusing to give defendant's peremptory instruction to find the defendant not guilty at the close of all the evidence in the case.

"IV"

"Because the 'Dog Tax Law,' Article 12, Chapter 88, R. S. of Missouri for 1929, as amended by Acts of the Legislature of Missouri for 1937, page 224, Sections 12872 to 12874-c inclusive, approved June 24th, 1937, was not in...