Waters v. People

• Decision Date: 16 June 1896
• Citation: 46 P. 112,23 Colo. 33
• Parties: WATERS v. PEOPLE.
• Court: Colorado Supreme Court

46 P. 112

23 Colo. 33

WATERS v. PEOPLE.

Supreme Court of Colorado

June 16, 1896

Error to El Paso county court.

Frank A. Waters was convicted of cruelty to animals, and appeals. Affirmed.

Rhett &amp Jones and Wells, Taylor & Taylor, for plaintiff in error.

J. C Helm, Byron L. Carr, Atty. Gen., and Calvin E. Reed, Asst Atty. Gen., for the People.

CAMPBELL J.

This prosecution, instituted by the humane society before a justice of the peace of El Paso county, where the plaintiff in error (defendant below) was found guilty and sentenced to pay a fine, resulted in a conviction and a fine in the county court of that county in the trial upon defendant's appeal. To this latter judgment the defendant prosecutes his writ of error in this court.

In the county court, by an agreement of parties, the cause was submitted to the decision of the court, without a jury, upon this agreed statement of facts: 'The defendant was at the time of the matter complained of in this case a member of what is known as the 'Country Club,' the same being an organization of gentlemen for the purpose of amusement, and its operations were carried on in El Paso county, Colorado. That on or about the 12th day of January, 1895, the defendant, together with other members of said club, owned forty (40) live doves, which they had obtained and kept in confinement for the purpose of using them as targets to shoot at for their amusement. That at said time the doves were placed in traps singly, and released therefrom, and then and there shot by the defendant as targets for sport and amusement of himself and other members of the club. That some of the doves were shot and killed outright by defendant, while some were wounded, and then captured and immediately killed by persons employed for that purpose. Others shot by defendant escaped apparently unhurt. It was impossible to know whether all were unhurt or not, or whether they were seriously injured or not. That the wounding of said doves was not for the purpose of inflicting pain or to torture the same thereby, but resulted from want of skill; the purpose of the defendant being then and there to kill the birds outright. That the doves which were killed outright or wounded, and then captured and killed, were subsequently used as food by defendant and others.' The validity of the judgment below depends upon the construction of the following provisions of our statute: 'Every person who * * * tortures, torments, * * * or needlessly mutilates or kills * * * any animal, or causes or procures it to be done, * * * shall, upon conviction, be punished,' etc. Mills' Ann. St. § 104. 'In this act the word 'animal' shall be held to include every living dumb creature; the words 'torture,' 'torment' and 'cruelty' shall be held to include every act, omission or neglect whereby unnecessary or unjustifiable pain or suffering is caused, permitted, or allowed to continue when there is a reasonable remedy or relief * * *.' Mills' Ann. St. § 117. While this controversy is real, and the prosecution was instituted by the humane society in good faith, counsel for the people and the defendant, both in the court below and here, with the sole desire to obtain a decision upon the legal proposition involved, have, with commendable accord, eliminated all matters the consideration of which might tend to embarrass or obscure the one vital question in the case. It is proper further to remark that the plaintiff in error is not chargeable with moral delinquency, or with malicious intent wantonly to violate a law of the land, but, rather, as a law-abiding citizen, he has purposely done the act complained of, in order to furnish a test case wherein may be determined his controverted right, and that of his associates, to shoot live birds from a trap for sport and amusement. At the common law the act done would not be a crime or a misdemeanor. If it is such now, it is because of our statute. As an abstract question, men of equal refinement and intelligence, either because of a difference in taste or training, or in their surroundings and occupations, might well differ as to the moral obliquity of the act of shooting live doves as they were released from a trap. The scholarly ascetic, whose chief pleasures are found in the library, or the man whose life is devoted to the welfare of the lower animals, might suffer excruciating pain if such an act was committed in his presence; while the sportsman, whose recreations are gunning and fishing, might look with pleasure upon what, to him, was 'an ancient and honorable pastime.' What is a popular diversion, or a harmless amusement, cannot always be accurately determined. That which was so considered in the decade past may not be so regarded to-day, and that which is so to-day may be tabooed, as such, in the near future; and so men equally conscientious, intelligent, and law-abiding, may, not only at different times, but during the same period of time, differ as to these questions. It is of common knowledge that within the past few years, as incident to the progress of civilization, and as the direct outgrowth of that tender solicitude for the brute creation which keeps pace with man's increased knowledge of their life and habits, laws, such as the one under consideration, have been enacted by the various states having the common object of protecting these dumb creatures from ill treatment by man. Their aim is not only to protect these animals, but to conserve public morals, both of which are undoubtedly proper subjects of legislation. With these general objects all right-minded people sympathize. There may be, however, and are, radical differences of opinion as to the extent to which such legislation ought to go. With the policy or wisdom of such enactments we have nothing to do. Our duty, and our only concern, is to give proper effect to such legislation, and to interpret or construe its provisions in the light of the object which the general assembly had in view when the law was passed, in response to the demand of an enlightened public sentiment. We have been much aided by the learned counsel in their briefs and by their oral arguments, and by the authorities which their research has discovered. The cases in point are Com. v. Lewis, 140 Pa. St. 261, 21 A. 396; State v. Bogardus, 4 Mo.App. 215; Com. v. Turner, 145 Mass. 296, 14 N.E. 130; State v. Porter, 112 N.C. 887, 16 S.E. 915. Other authorities bearing upon this statute are Ford v. Wiley, 23 Q. B. Div. 203; Grise v. State, 37 Ark. 456; Hodge v. State, 11 Lea, 528.

The Pennsylvania statute (P. L. 1869, p. 22) is: 'Any person who shall * * * wantonly or cruelly illtreat * * * any animal' shall be punished. The...