State v. Surma

• Decision Date: 03 March 1953
• Citation: 263 Wis. 388,57 N.W.2d 370
• Parties: STATE, v. SURMA et al.
• Court: Wisconsin Supreme Court

Page 370

57 N.W.2d 370

263 Wis. 388

STATE, v. SURMA et al.

Supreme Court of Wisconsin.

March 3, 1953.

Rehearing Denied May 5, 1953.

Review Denied February 6, 1985.

Criminal action brought by the state against the defendants, Walter and Emil Surma, charging them with wilfully, wantonly and maliciously maiming, mutilating disfiguring and killing a dog, which was the property of Harley Heinz, contrary to Section 343.47(1), Stats. The defendants pleaded not guilty, and upon the trial of the action the court found that both of them were guilty; and sentenced them to terms of imprisonment. Stays of execution were granted pending the decision of the court on the appeals.

Allan Cain, Kaukauna, for appellants.

Vernon W. Thomson, Atty. Gen. and William A. Platz, Asst. Atty. Gen., for respondent.

FRITZ, Chief Justice.

On June 19, 1951, a dog owned by Harley Heinz, who was a neighbor of the appellants, wandered and strayed over to a farm owned by the appellants' parents. Appellants had never seen the dog before, and did not know whose dog it was. He was a large rangy coon hunting dog, and did not have a license attached to his collar, or to any other part of the dog. Upon the trial of the action, the appellants introduced testimony to the following effect: That the dog bothered the animals on their parents' farm, and appellants caught the dog and tied him up in the barn and gave him some straw to lie on; and that on the next day, the dog was let loose so that he might go home, but instead he ran among the cattle and scared them; that the dog was caught again and tied to a grindstone and later let loose again, but he always came back to the parents' farm, and was always fed and watered while there; that on Thursday June 21, 1951, after milking time in the evening, the appellants, Walter and Emil, decided that they would take the dog in the automobile to a crossroad, about a mile away from the farm, and leave him out at the crossroads, so that he would not return to the farm, and would in some way find his way home; that before putting the dog in the automobile, appellants tied a tin can to his tail, and filled the can with stones, so that it would frighten the dog away from the farm; that after the can was tied to his tail, the dog went about 200 feet away, but always came back to the farm; that appellants then put the dog in the automobile and Walter drove the car, and Emil held the dog; that appellants were in the front seat as they proceeded down the roadway and the dog became unruly and jumped around in the car from the front to the back seat and they thought that the dog might jump through the window; that Walter then decided to tie the dog behind the automobile, and lead him the rest of the way to the crossroad, which was their destination. A rope was found in the rear of the automobile and the appellants tied the dog to the right side of the rear bumper, approximately two or three feet from the exhaust pipe, which extended 2 or 3 inches beyond the bumper; and they tied the dog to the right side of the bumper so that he could not wander into approaching traffic. After tying the dog, Walter resumed his position as the driver of the automobile, and Emil became the lookout to watch the progress of the dog as they drove along the road. Appellants testified that the maximum speed the car was driven was from 10 to 15 miles per hour. On three separate occasions Emil looked out to see the dog, and the first and second time he reported that the dog was getting along fine; but that the third time he looked at the dog, he was down and dragging, and Emil then informed Walter, who immediately stopped the car and got out. He testified that the dog had been dragged for some distance--approximately over a fifteen acre tract of land--and that he listened to the dog's heartbeat and saw that his tongue was out; and upon hearing no heartbeat, he figured that the dog had died. There was some blood on the highway, and Walter became scared and then cut the rope and placed the dog in a ditch alongside the highway. Neither Walter nor Emil considered at that time that the dog might have become asphyxiated from the exhaust of the automobile. On the trial there was ample evidence which the court could consider credible to establish that a trail of blood was traceable for six-tenths of a mile in the road to the place where the dog was ultimately found.

The offence was committed by appellants on a Thursday afternoon, and the dog was not found until the following Sunday afternoon. He was found by a neighbor who knew the owner, Harley Heinz. He testified that he found the dog in the ditch with a tin can tied to his tail, and he then took the dog to a veterinarian that Sunday night, who in testifying, described the dog's condition as follows:

'* * * The front leg as I remember, and the sternum--the rib part--was completely denuded of muscle and the tendons were rotted. The back leg--I can't remember--I think it was the right rear leg towards the paw, was also completely denuded and the bones were exposed. It was quite offensive, and the flies had gotten in there sometime previously and it was just full of maggots. They were terrifically bad. The prognosis on the dog was very poor when it was brought in. * * * It was at night, and the next morning the dog was dead. * * *'

These terrible injuries to the dog, together with the trail of blood, constituted evidence which amply supported the finding of violation of sec. 343.47(1), Stats., by appellants, and tended to prove some of the testimony given by appellants to be untrue.

Harley Heinz, owner of the dog, had duly licensed the same, but at the time of the commission of the offence by appellants, the license tag was not affixed to the dog's collar. In view of this, appellant's counsel contends that sec. 174.10, Stats., prevented them from being prosecuted under sec. 343.47(1), Stats., and they rely upon the statement in the decision of this court in State v. Garbe, 256 Wis. 86, 89, 39 N.W.2d 743, 744, reading:

'The prerequisite facts required by the portion of 174.10 [Stats.] quoted, do not affirmatively appear and no civil or criminal action may be maintained for the dog's destruction.'

In the Garbe case, we had a shooting and killing of a dog with no element of cruelty to animals present. In the instant case, we have an instance of extreme cruelty to a dog. In the light of this, we believe we should make a further analysis of 174.10, Stats., which reads as follows:

'The fact that a dog is without a license attached to a collar shall be presumptive evidence that the dog is unlicensed. No action shall be maintained for an injury to or the destruction of a dog without a tag, unless it shall appear affirmatively that the dog is duly licensed and that a tag had been properly attached to the collar of the dog and had been lost or removed without the knowledge or consent of the owner, or that the dog is not required to be licensed.'

The question is whether the words 'No action' contained in that statute should be held to include criminal, as well as civil actions, or whether it should be construed to refer to civil actions only.

The words 'action' or 'actions' appearing in a statute have been construed by many courts as to whether such terms embrace criminal as well as civil actions, or whether they are limited solely to civil actions. The following decisions have construed such terms in a particular statute to refer only to civil, and not to criminal actions: United States v. Safeway Stores, 10 Cir., 1944, 140 F.2d 834, 838, 839; Calkins v. State, 14 Ohio St. 222, 233; Harger v. Thomas, 44 Pa. 128, 130, 84 Am. Dec. 422; Commonwealth v. Gallo, 275 Mass. 320, 175 N.E. 718, 725, 79 A.L.R. 1380; United States v. Goodhues, D.C.Md., 53 F.2d 696, 701; and Wynn v. Commonwealth, 198 Ky. 644, 249 S.W. 783, 784. Probably an equal number of decisions could be cited contra to the effect that the use of the word 'action' includes criminal actions.

Because of this division of authority, it is apparent that the use of the term 'action' in sec. 174.10, Stats., is an ambiguous one, and it is for this court to construe the legislative intent. No definition of the word 'action' is included among the definitions appearing in Ch. 370, Stats., entitled 'Construction of Statutes.' Secs. 260.03 and 260.05, Stats., do refer to the fact that actions may be criminal as well as civil, but Ch. 260 is entitled 'Civil Actions, and Parties Thereto', and we do not construe 260.03 and 260.05 to have been intended by the legislature to provide that wherever the word 'action' appears in a statute it must be deemed to include a criminal as well as civil action. Furthermore, even if secs. 260.03 and 260.05, Stats., were construed as providing a definition of 'action', sec. 260.01, Stats., limits their scope to Title XXV, Stats., which embraces only chapters 260-281, inclusive, and such definitions wouldn't apply to any other statute outside of Title XXV.

It would lead to an absurd result to hold that the legislature considers it to be a crime to cruelly maim a dog with with a license tag on its collar, while it is not a crime to inflict the same cruelty upon another dog without such a tag on its collar. There is the well known principle of statutory construction that unreasonableness or absurdity is to be avoided. This is well stated in 50 Am.Jur. 385-387, as follows:

'A statute subject to interpretation is presumed not to have been intended to produce absurd consequences, but to have the most reasonable operation that its language permits, and it is generally the rule that where a statute is ambiguous in terms and fairly susceptible of two constructions, the unreasonableness or absurdity which may follow one construction or the other may be considered. In some cases involving the construction of a statute, considerations of what is reasonable are even regarded as having potent influence. If possible, doubtful...