Willeroy v. Commonwealth

• Decision Date: 11 October 1943
• Citation: 181 Va. 771,27 S.E.2d 211
• Court: Virginia Supreme Court
• Parties: WILLEROY. v. COMMONWEALTH.

27 S.E.2d 211

181 Va. 771

WILLEROY.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Oct. 11, 1943.

Error to Hustings Court of Richmond; Jno. L. Ingram, Judge.

W. A. Willeroy was convicted of cruelly and unnecessarily killing a dog, and he brings error.

Reversed and dismissed.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, J J.

W. A. Willeroy, of Richmond, for plaintiff in error.

Abram P. Staples, Atty. Gen., and M. Ray Doubles, Asst. Atty. Gen., for the Commonwealth.

HOLT, Justice.

Mr. W. A. Willeroy lives in Richmond and is the owner of a home there at which, in a limited way, he raises chickens.

On the afternoon of October 2, 1942, two dogs came to it and killed five of them. Fearing or anticipating their return, on the afternoon of the next day, he took his sixteen-gauge single-barrel shotgun and went on guard. They did come back; their identity is not in dispute. One of them was small and the other larger. The smaller came first and circled where the chickens had been killed. Nothing was done as to him. Then the larger dog came through his privet hedge, made for the chicken yard and was up against its fence, seeking to break it down, when he saw Mr. Willeroy and bolted. Willeroy shot and killed him. Shortly thereafter two policemen came and arrested him on a warrant charging him with cruelly and unnecessarily killing one dog, the property of Mrs. Thomas J. Hammond. Willeroy went with them to Police Headquarters. The warrant was read to him, and he was released on his own recognizance. He then returned to his home and found the small dog still there. After repeated ineffectual attempts to drive him away, he killed him. The large dog was killed before supper and the small dog after supper.

In the police court he was tried, convicted and fined $50. From that sentence he appealed to the Hustings Court of the City of Richmond, where his case was heard without the intervention of the jury. He was there fined $25, coupled with the further provision that in the event of his failure to pay he should be sent to jail.

That judgment is based upon what he did before supper and from it he has obtained a writ of error.

From time immemorial people have been attached to their dogs and their dogs to them. Tobit's dog went with him. The anthology of every land is filled with eloquent tributes of affection, but their record is not spotless. Atavistic maraudic strains inherited from a savage ancestry sometimes develop; they revert to type and kill from a love of slaughter. It is then that they become a public nuisance and a publicmenace, and to them the ordinary rules of self-defense apply, for men may protect their property as they may protect their person.

"A ferocious and vicious dog roaming at large, which is accustomed to bite mankind and animals, or which is endangering the safety of persons and property, is a common enemy and a public nuisance, and may be lawfully killed; * * *" 3 Corpus Juris Secundum Animals, § 216, p. 1331.

"The owner of a domestic animal or fowl which is placed in jeopardy by the attack of a dog has the right to kill the dog for the protection of his property. This rule exists not only at common law, but under statutes declaratory thereof, obtaining in most American jurisdictions; and in so far as these statutes are more narrow than the common law it is held that the common-law right continues as to cases outside the scope of the statutes." * * * 2 Am. Jur. 764.

In an extended note on this subject appended to Ex parte Minor, 203 Ala. 481, 83 So. 475, 10 A.L.R. 687, governing rules are thus stated:

"The owner of a domestic animal or fowl which is placed in jeopardy by the attack of a dog has the right to kill the dog for the protection of his property." * * *

"It is ordinarily held that to justify the killing of a dog for the protection of a domestic animal or fowl, he must be presently attacking or threatening the animal or fowl. That he has in the past attacked animals or fowls will not justify the killing of a dog." * * *

"To warrant the killing of a dog for the protection of a domestic animal or fowl, the circumstances must be such as to create a reasonable belief that such killing is necessary to prevent injury to the animal or fowl."

In Breedlove v. Hardy, 132 Va. 11, 110 S.E. 358, 359, the right of an owner to protect his fowls is thus stated:

"The owner of domestic animals or fowls has the right to defend them from injury or destruction through the attacks of other animals, but the extent of such right of defense necessarily depends on the circumstances and necessities of the particular case, that is, whether or not the right is reasonably or properly exercised, so as to make it lawful and justifiable."

This case is relied upon by the Commonwealth. There was a verdict for the defendant which the court set aside because of an erroneous instruction. The dogs which were shot had been chasing and worrying the defendant's turkeys all the summer. It appears to have been a sporting proposition with them; they were not killers.

Reliance was placed upon Section 4, Session Acts 1918, c. 390, p. 622. The court said that that section dealt with the power of game wardens and neither extended nor limited common law rights.

It is to be remembered that that was a civil action for damages. The court said:

"Where the proof of the killing of the dog is clear, the burden is then upon the defendant, who justifies his action, to show the necessity therefor."

This is a criminal case, and...