30 Tex. Ct. App. 333 | Tex. App. | 1891
This appeal is from a conviction in the court below for stealing a dog. As.charged in the indictment, the offense (omitting the formal parts) is stated as follows, to-wit: That
Ho question was raised in the court below upon the sufficiency of the indictment, in that it did not state an offense against the laws of this State, nor does counsel representing appellant by printed brief in this court in any manner question the legality of the prosecution and conviction, but their contention as to errors is based solely upon matters arising at the trial. So far as we are aware, this is the first conviction in this State of a felony for stealing a dog, and owing to the rule as it obtained at the common law and the contrariety of decision by the American courts upon the subject, we deem it not inappropriate to determine in the first instance whether or not it is a felony under our present statutes to steal a dog. In the case of The State v. Marshall, 13 Texas, 58, Mr. Justice Wheeler says: “By the common law, though a man may have such property in these animals as to entitle him to maintain a civil action for an injury done to them, yet, as they are not classed among valuable domestic animals, as horses and other beasts of burden, nor among animals domiiice natura, which serve for food, as neat cattle, swine, poultry, and the like, the property in them is considered of so base a nature, and they are held in so little estimation as property, that the stealing of them does not amount to larceny. 4 Black. Com., 236; 1 Hale, 512. But by the statute in England very severe penalties are inflicted for the crime of stealing a dog. 4 Black. Com., 236, note. And in some of the States dogs are by statute placed upon the same footing as other personal property. Whart. Crim. Law, title ‘Larceny’; Heisrodt v. Hackett, 34 Mich., 283. We have in this State no statute upon the subject.” And in the case of Ex Parte Cooper, 3 Texas Court of Appeals, 489, which was a case involving the constitutionality of the dog-tax law, after quoting the above extract from Judge Wheeler in Marshall’s case, it was said: “At the time that decision
was made there was no statute making it malicious mischief to kill a dog, but such animals have since been included in that particular statute. Pasch. Dig., art. 2344. Besides that statute, we know of no other recognizing them (in terms) among the domestic animals or as property. These authorities, we think, settle the first proposition, and to the effect that in law dogs are not recognized as other property and subject to an ad valorem taxation.”
Mr. Bishop says, animals fera natura, when reclaimed, become subjects of larceny, provided they are fit for food, and not otherwise; and he says: “Of animals of-which, when reclaimed, larceny may
Our penal statutes with regard to theft bearing upon this question are as follows: “Theft is the fraudulent taking of corporeal personal property belonging to another,” etc. Penal Code, art. 724. “The property must be such as has some specific value which can be ascertained. It embraces every species of personal property capable of being taken.” Penal Code, art. 725. Within the meaning of “personal property” which may be the subject of theft are included all domesticated animals and birds when they are proved to be of any specific value. Penal Code, art. 733. Theft of the value of $20 or over shall be punished by confinement in the penitentiary not less than two nor more than ten years. Penal Code, art. 735. In article 748 of the Penal Code theft of sheep, hogs, and goats is specifically named as an offense, with the penalty affixed. It will be noted that our statute above quoted (article 725) embraces every species of personal property capable of being taken, and includes all domesticated animals (article 725, 733); and in addition to those statutes relating to theft, by article 679 of the Penal Code, punishing malicious mischief, it is expressly made an offense to “willfully kill, maim, wound, poison, or disfigure any horse, ass, mule, cattle, sheep, goat, swine, dog, or other domesticated animal,” etc. In the case of The State v. Harriman, 75 Maine, 562 (Same Case, 46 American Reporter, 423), under a statute which provided for killing or wounding “domestic animals,” it was held that dogs were not domestic animals, and that a prosecution would not lie. We might, if necessary, draw the distinction between “domestic” and “domesticated,” as used in our statute supra; but we do not deem it necessary to do so.
We quote approvingly the following language used by Appleton, C. J., dissenting from the opinion of the court in that case: “A dog is the subject of ownership. Trespass will lie for an injury to him. Trover is maintainable for his conversion. Beplevin will restore him to the possession of his master. He may be bought and sold. An ac
In the case of Mullaly v. The People, 86 New York, 365, which was a case for stealing a dog, it was held that the term "personal property ” as used in the New York statute included dogs, and that the
So we see that in other States the larceny of a dog has been held punishable upon the ground that he is a “domestic” animal; that he is “personal property” and a “thing of value.” We think that under our statute there can be no question but that the dog would come within tlie terms “domesticated animal,” and as such become the subject of theft. In the case before us the dog was a fine pointer, which was shown to be worth at least $50, and as such his theft would be under our statute a felony.
Defendant’s only bill of exceptions was taken to the refusal of the court to allow him to prove a conversation between the witness Cooper
Affirmed.
Judges all present and concurring.