128 Ga. 631 | Ga. | 1907
(After 'stating the facts.)
The case, cited by plaintiff in error, of Moss v. Augusta, 93 Ga. 797, the same being an action against the city for the wanton killing of plaintiff’s dog by an officer of the city, was decided upon the ground that “a city is not liable for the illegal and tortious acts of its police officers.” And the case of Patton v. State, 93 Ga. 411, holding that the wilful and malicious killing of a dog is not an indictable trespass under the Penal Code, §729, was based upon the ground that “That section relates to the injury or destruction of inanimate property, and does not apply to injuring or killing animals of any kind.” In the case of Wilcox v. State, 101 Ga. 563, it was expressly held that a dog is a “domestic animal.” Under the Civil Code, §3822, the owner is made liable for certain acts of his dog, “thus recognizing that the dog has an owner, and consequently that the thing owned is property.” (People v. Maloney, 1 Park. Crim. Pep. 593.) Under the constitution of the State (Civil Code, §5883), dogs are treated as property, and the General Assembly is authorized to impose a tax upon them. And the Penal Code, §164, makes the dog a subject of simple larceny. And an indictment for simple larceny, even of a thing specified by statute, must allege both the ownership of the property stolen, and its value. Davis v. State, 40 Ga. 229; Thomas v. State, 96 Ga. 311. It must, therefore, be concluded that the criminal branch 'of the law recognizes the dog as private property, and also as a “thing of value.” In the Strong case, supra, Cobb, J., in his concurring opinion, quotes the language of a decision rendered by the then presiding judge of the Atlanta circuit, holding that a dog was property subject to levy and sale. That question, however, has never come before this court, and is no part of the opinion in the Strong case; but the reasoning of the learned circuit judge there quoted is so cogent that we refer to it here as throwing a flood of light upon the question of the. true status of
Judgment affirmed.