5 Ga. App. 463 | Ga. Ct. App. | 1909
(After stating the foregoing facts.)
Judge Hamilton, who tried the case in the court below and who-is usually so well versed in all matters of general jurisprudence,, seems to have gone wrong when he encountered the intricacies of' the dog law. He was doubtless misled by the precedents of the modern English cases, when he should have looked further back to the ancient’ wisdom of the common-law authorities. He seems-to have overlooked the provision of the canine code which makes the practices of egg-sucking and sheep-killing capital felonies. Such is the law, and so it has been so long that the memory of dogs and men runneth not to the contrary. Indeed, in the case-of Wadhurst v. Damme (Cro. Jac. 45), decided by the court of King’s Bench over three hundred years ago, Sir John Popham, Knt., Chief Justice, in a case where the warrener killed a dog" which had been killing conies in his warren, said, “The common use of England is to kill dogs and cats in all warrens as well as any vermin; which shows that the law hath been always taken to-be that they may well kill them;” and all the court joined in holding the defendant not liable, saying, “It is good cause for the killing him, in salvation of his conies; for, having used to haunt the warren, he can not otherwise be restrained.”
The cynical (the word may be taken here in its etymological as well as in its popular meaning) reflection of the modern philosopher, that the more he sees of some dogs the less he thinks of some-men, has no reference to suck-egg dogs or to sheep-killing dogs.. In some States (e. g. Massachusetts, Missouri, and California) the sheep-killing dog is made an outlaw by statute; in this State his status is a part of the higher or unwritten law. We think that the court erred in holding that it was necessary to kill the dog in flagrante delicto, to make the act justifiable. It may be true — • and there is respectable authority to support the proposition- — - that the sucking of a single egg or the worrying of sheep one time may not establish a dog’s status as an outlaw and a nuisance, so as to justify his summary execution whenever and wherever he may thereafter be met (see Brent v. Kimball, 60 Ill. 211, 14 Am. Rep. 35; Wells v. Head, 4 Car. & P. 568; Dodson v. Mock, 4 Dev. & Bat. L. 146, 20 N. C. 282, 32 Am. Dec. 677; Bowers v. Horan, 93 Mich. 420, 53 N. W. 535, 17 L. R. A. 773), but when a dog acquires the egg-
Young Mr. Miller, it must he conceded, committed a serious breach of propriety and a lack of neighborly consideration in killing the dog in Mr. Stanton’s yard, in the presence of the latter’s family. They doubtless loved the little fice; these little animals, however worthless they may be, have a way of endearing themselves, especially to the womén and children of the family. I well remember how in the days gone by my childish tears flowed as, in poignant grief, I stood broken-hearted and viewed the cold remains of my fice dog, .Buster, who had met an untimely death. But under the record we are inclined to think that the defendant’s cruelty was operative against Mr. Stanton’s family, rather than against the dog, which seems to have been worthless and of a vicious temperament. He did wrong to shoot when and where he did, but he is entitled' to a new trial as to the penal offense with which he stands charged. Judgment reversed.