State v. Smith

• Decision Date: 11 October 1911
• Citation: 72 S.E. 321,156 N.C. 628
• Parties: STATE v. SMITH et al.
• Court: North Carolina Supreme Court

72 S.E. 321

156 N.C. 628

STATE v. SMITH et al.

Supreme Court of North Carolina

Oct 11, 1911

Appeal from Superior Court, Lenoir County; Peebles, Judge.

Ashton Smith and another were convicted of willfully killing a dog and they appeal. Affirmed.

Erroneous instruction on matters not properly in issue held not ground for reversal.

Rouse & Land, for appellants.

Attorney General Bickett and G. L. Jones, for the State.

WALKER J.

defendants were indicted in the court below for the crime of willfully killing a dog, the property of the prosecutor. It would be vain and unprofitable to discuss, for the purpose of deciding, that a dog is a living creature, within the meaning of Revisal 1905, § 3299, under which the indictment was drawn and presented by the grand jury. We have held that he is a subject of property, a domesticated animal, and not merely feræ naturæ, and that a civil action may be maintained for damages caused by an injury to him, though he may have been guilty of some "youthful indiscretion" or harmless transgression. A dog is like a man in one respect at least-- that is, he will do wrong sometimes; but, if the wrong is slight or trivial, he does not thereby forfeit his life. The opinion of Judge Gaston, in Dodson v. Mock, 20 N.C (Ann. Ed.) 282, 32 Am. Dec. 677, has been generally taken as a clear and accurate statement of the law in regard to the right of property in this much petted and sometimes useful animal. That was a civil action to recover damages for killing the plaintiff's dog; the defendant contending that a dog was not property, and therefore no action would lie for any injury to him. In view of this contention, Judge Gaston said: "It was not necessary for the maintenance of the action that the plaintiff's dog should be shown to have pecuniary value. Dogs belong to that class of domiciled animals which the law recognizes as objects of property, and whatever it recognizes as property it will protect from invasion by a civil action on the part of the owners. It is not denied that a dog may be of such ferocious disposition or predatory habits as to render him a nuisance to the community, and such a dog, if permitted to go at large, may be destroyed by any person. But it would be monstrous to require exemption from all fault as a condition of existence. That the plaintiff's dog on one occasion stole an egg and afterwards snapped at the heel of the man who had hotly pursued him flagrante delicto, that on another occasion he barked at the doctor's horse, and that he was shrewdly suspected in early life to have worried a sheep, make up a catalogue of offenses not very numerous, nor of a very heinous character. If such deflections as these from strict propriety be sufficient to give a dog a bad name and kill him, the entire race of these faithful and useful animals might be rightly extirpated." It was next held in State v. Latham, 35 N.C. 33, that the owner has such property in a dog that an indictment for malicious mischief in killing him will lie. These cases were followed by others, deciding different questions, but all recognizing the general rule that a dog is property. Perry v. Phipps, 32 N.C. 259, 51 Am. Dec. 387; Mowery v. Salisbury, 82 N.C. 177 (right to tax them). In State v. Latham, supra, the indictment was for malicious mischief, and the judge, by his charge, let the guilt of the defendant turn altogether upon an affirmative answer to the question whether the defendant, in killing the dog, was acting in defense of his property, without regard to whether or not he did so from malice to the owner. This was held to be error, as the gist of the offense was malice to the owner, and the killing, from passion excited against the dog by the injury or threatened injury to property, was not any defense, provided the defendant was actuated by malice towards the owner. In that case, Judge Nash took occasion to say: "By the old authorities, a dog was not a subject of larceny, because it was without value. But, notwithstanding, it is a species of property, recognized as such by the law, and for an injury to which an action at law will be sustained. Dodson v. Mock, 20 N.C. 282, 32 Am. Dec. 677. Many actions have been brought in this state, and in England, for injuries to such property. 2 Bl. Com. 393, 394. If, then, dogs be personal property, they are protected by the law, and the owner has such an interest in them as that he can protect and defend them; and the destruction of them, from malice to the owner, is, in law, malicious mischief."

Although counsel did not so contend, we must say that the dog is not an animal of such base nature or low degree, whatever his pedigree may be, as not to be entitled to the consideration and full protection of the law, or as to subject him to outlawry, if he has a bad reputation, or at least a habit of killing fowls, so that if he lurks near where they are to be found, although they are protected by a sufficient fence or other barrier against his predatory and ferocious disposition, he may be killed, even if he is not engaged in the actual attempt to slay and devour his supposed prey, or the danger of his doing so is not so imminent or immediately threatening that a prudent and reasonable man would be led to believe that his property is in jeopardy. We cannot give our assent to this principle. Admit such a right, and the peace and good order of society would be seriously endangered and could not well be preserved, for the exercise of such a right would excite the most angry passions and resentment of the dog's owner and eventually result in personal violence, thus disrupting the peace and quiet of the community. So thought Judge Pearson, in Morse v. Nixon, 51 N.C. 293. But we think that the dog is not an animal of such low origin and of such a base nature as to be beyond the pale of the law. The right to slay him cannot be justified merely by the baseness of his nature, but it is founded upon the natural right to protect person or property. He has the good will of mankind because of his friendship and loyalty, which are such marked traits of his character that they have been touchingly portrayed, both in song and story. Why, then, should he be declared an outlaw and a nuisance, and forfeit his life without any sufficient cause? This was never the law. Neither at the common law, nor since the passage of our present statute, prohibiting cruelty to animals, can a dog be killed for the commission of any slight or trivial offense ( State v. Neal, 120 N.C. 614, 27 S.E. 81, 58 Am. St. Rep. 810); nor to redress past grievances (Morse v. Nixon, supra). As said by Chief Justice Pearson in the last-cited case: "It may be the killing will be justified by proving that the danger was imminent, making it necessary 'then and there' to kill the hog in order to save the life of the chicken, or prevent great bodily harm."

It was well said by the Chief Justice in that case that, in order to recover damages in a civil action for injuries to property committed by a hog (or dog), the plaintiff must prove, as we say, a scienter; that is, knowledge of his vicious propensities, as in the case of the deer in the Saratoga Park (Spring Co. v. Edgar, 99 U.S. 645, 25 L.Ed. 487) where it was held: "Certain animals feræ naturæ may doubtless be domesticated to such an extent as to be classed, in respect to the liability of the owner for injuries they commit, with the class known as tame or domestic animals; but, inasmuch as they are liable to relapse into their wild habits and to become mischievous, the rule is that if they do so, and the owner becomes notified of their vicious habit, they are included in the same rule as if they had never been domesticated; the gist of the action in such a case, as in the case of untamed wild animals, being not merely the negligent keeping of the animal, but the keeping...