State v. Wallace

• Decision Date: 18 November 1980
• Docket Number: No. 8015SC518,8015SC518
• Citation: 49 N.C.App. 475,271 S.E.2d 760
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. James E. WALLACE.

Page 760

271 S.E.2d 760

49 N.C.App. 475

STATE of North Carolina v. James E. WALLACE.

No. 8015SC518.

Court of Appeals of North Carolina.

Nov. 18, 1980.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Donald W. Grimes, Raleigh, for the State.

Vernon, Vernon, Wooten, Brown & Andrews, by Wiley P. Wooten, Burlington, for defendant-appellant.

HARRY C. MARTIN, Judge.

This is a case about dogs. As dogs do not often appear in the courts, it is perhaps not inappropriate to write a few words about them. The dog, a carnivorous mammal, has been kept in a domesticated state by man since prehistoric time. "The memory of man runneth not to the contrary."

Diana, the Roman counterpart to Artemis, was the goddess of hunting. She was the twin sister of Apollo and was usually pictured with her hunting dogs, given to her by the wind-god, Pan. Cerberus, the three-headed dog, served as the watchdog at the gates of Hades. In the sky we find Sirius, the brilliant dog star, the brightest star in the entire heavens. Sirius floats through time at the hand of his master, Orion.

Edmund Burke in The Sublime and Beautiful (1756) said: "Dogs are indeed the most social, affectionate, and amiable animals of the whole brute creation." Herodotus reports in An Account of Egypt (5th Century) that dogs were regarded as sacred by the ancient Egyptians. When a dog died, the people of the house shaved their whole bodies and heads and the dog was buried in sacred tombs within the city. In Sir Francis Bacon's essay Of Atheism (1612), we find "for take an example of a dog, and mark what a generosity and courage he will put on when he finds himself maintained by a man."

Byron wrote:

But the poor dog, in life the foremost friend, The first to welcome, the foremost to defend.

The Talisman tells that Richard I said:

The Almighty, who gave the dog to be companion of our pleasures and our toils, hath invested him with a nature noble and incapable of deceit. He forgets neither friend nor foe-remembers both benefits and injury. He hath a share of man's intelligence, but no share of his falsehood. You may bribe a soldier to slay a man, or a witness to take life by false accusation, but you cannot make a hound tear his benefactor. He is ever a friend of man, save when man incurs his enmity.

The shape of history was changed by a spaniel who saved William of Orange from death by the Spaniards when they made a surprise attack upon his army at night. William and his sentinels were fast asleep but a small spaniel on the prince's bed barked furiously at the approaching footsteps. It sprang forward, scratched his master's face with a paw, and enabled him to mount a horse and escape. To his dying day the prince kept a spaniel in his bedchamber.

Throughout history we find the fate of man and dog intertwined. Dogs have rescued kings and knaves, princes and paupers. Who will ever forget the heroic deeds of the great St. Bernards of the Alps? As one gazes through the window of time, the vision of a barefoot boy and his dog, walking down a dusty summer road, brings a tear to the eye. A boy without a dog! Life would be unbearable.

The dog is of a noble, free nature, yet is domesticated and dedicated to the well-being of people of all races. We find the dog's story told throughout our reports. One of the earliest cases, Dodson v. Mock, 20 N.C. 282 (1838), was an action for trespass vi et armis for killing plaintiff's dog by poison. Justice Gaston, for the Court, held that dogs belong to that class of domiciled animals which the law recognizes as objects of property. As such, the dog is entitled to protection of the law even though it may on occasion have stolen an egg, nipped at the heel of a man chasing it, or worried a sheep. Those offenses by a dog are not 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 rightfully extirpated." Id. 20 N.C. at 285.

Justice Walker speaks of the dog in State v. Smith, 156 N.C. 628, 629-31, 72 S.E. 321, 321-22 (1911):

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.

... (W)e will 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.... He (the dog) has the goodwill 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.

In Moore v. Electric Co., 136 N.C. 554, 557-58, 48 S.E. 822, 823, 67 L.R.A. 470, 471-72 (1904), we find:

It is not hazarding too much to say that it is a matter of common knowledge that in the classification of animal life (not including man) the dog occupies a position in point of intelligence, fidelity and affection superior probably to all of the others. He is known to have been for ages not only an animal of prey but wonderfully acquainted with the habits and ways of both man and beast and birds, keenly sensitive as to sight, hearing and smell, and remarkably agile in all of his movements. He can, by training and association with man, become adept in many useful employments and can be taught to do almost anything except to speak. They are known ordinarily to be able to take care of themselves amidst the dangers incident to their surroundings. Where a horse or a cow or a hog or any of the lower animals would be killed or injured by dangerous agencies the dog would extricate himself with safety.

We think, therefore, that the dog, on account of his superior intelligence and possession of the other traits which we have mentioned in respect to the diligence and care which locomotive engineers owe to their owners and to them, must be placed on the same footing with that of a man walking upon or near a railroad track apparently in possession of all his faculties, ....

The Commonwealth of Kentucky recognized the virtues of the dog in Shadoan v. Barnett, 217 Ky. 205, 210-11, 289 S.W. 204, 206, 49 A.L.R. 843, 847 (1926):

(H)istory may be searched in vain to find a living creature exhibiting as much fidelity and affection as does the dog to and for his master. Neither cold, heat, danger, nor starvation deters him from manifesting those most excellent qualities in his love for his master, and those with whom he constantly associates. History is filled with instances where all others have fled, but the faithful dog stood guard, either as a mourner at his master's grave or with a determined purpose to administer to the latter if occasion presented itself. The press dispatches constantly record his unparalleled deeds of heroism for the protection and benefit of mankind, even at the sacrifice of his own life. Because of those qualities, his virtues have been touchingly described by poets and celebrated in song, and rightfully the dog as a companion is most affectionately regarded by all persons who truly estimate loyalty and friendship as factors in smoothing the path of this world's existence.

In 1897 the Supreme Court of the United States had this to say about dogs:

They are not considered as being upon the same plane with horses, cattle, sheep, and other domesticated animals, but rather in the category of cats, monkeys, parrots, singing birds, and similar animals kept for pleasure, curiosity, or caprice. They have no intrinsic value, by which we understand a value common to all dogs as such, and independent of the particular breed or individual. Unlike other domestic animals, they are useful neither as beasts of burden, for draft (except to a limited extent), nor for food. They are peculiar in the fact that they differ among themselves more widely then any other class of animals, and can hardly be said to have a characteristic common to the entire race. While the higher breeds rank among the noblest representatives of the animal kingdom, and are justly esteemed for their intelligence, sagacity, fidelity, watchfulness, affection, and above all, for their natural companionship with man, others are afflicted with such serious infirmities of temper as to be little better than a public nuisance. All are more or less subject to attacks of hydrophobic madness.

Sentell v. New Orleans, etc., Railroad Co., 166 U.S. 698, 701, 17 S.Ct. 693, 694, 41 L.Ed. 1169, 1170 (1897).

An opinion by then superior court judge Lumpkin (later supreme court justice) of Georgia states the history of the dog in inimitable fashion:

"The dog has figured very extensively in the past and present. In mythology, as Cerberus, he was intrusted with watching the gates of hell; and he seems to have performed his duties so well that there were but few escapes. In the history of the past he has been used extensively for hunting purposes, as the guardian of persons and property, and as a pet and companion. He is the much valued possession of hunters the world over, and in England...