4 Park. Cr. 386 | New York Court of General Session of the Peace | 1859
The defendant was indicted at the last March term of this court, for grand larceny, in stealing (as averred) one dog of the value of $50, and one collar, of the value of $1, the property of Jeronomus S. Underhill. A demurrer to the indictment was argued before me at the last July term, on the ground that the stealing of a dog was not an offence by the laws of this State. Accompanying the indictment was a stipulation that it be considered as alleging that the dog in question was reclaimed, and made tame and domestic; and that the defendant, knowing it to be such, feloniously took and carried it away; and further, that the averment in the indictment as to the theft of the collar be deemed to have been omitted. The object was to present the question as though the indictment had been framed upon the simple felonious taking of the dog. It is impossible for the court to consider this stipulation in deciding the question as to whether a dog is property so as to be the subject of larceny. If it should be determined that a dog is not the subject of such an offence, the indictment would stand for the collar, which would make it in effect an indictment for petit larceny. If it should be so determined, and the prosecution cannot support the charge of stealing the collar, then, of course, the District Attorney would nól. pros, the indictment. Ho stipulation of this character can affect the structure of the indictment as it emanated from the grand jury. The charge, as made, being a felony, the Constitution of this State requires the presentment or indictment of a grand jury as a pre-requisite to trial; and if the pleading they file with the court could be remodeled by stipulations between the counsel, the defendant would not be tried upon the presentment of the grand jury, but rather upon the consent of the counsel.
This court cannot acquire jurisdiction to try an offence by consent, nor can its jurisdiction over an offence be changed by consent so as to embrace any other than that presented by the grand jury, where the action of that body is requisite. If the form of an indictment does not suit a' prosecuting officer, his
I have concluded to pass upon the question presented, and which was argued with ability on both sides, for the purpose of fixing the character of the indictment as to being one for grand or petit larceny.
At the common law, larceny could be committed of domestic cattle, i. e., sheep, oxen, horses, &c., or of domestic fowls, i. e., hens, ducks, geese, &c., because, according to Lord Hale, they were “ under propriety,” and served for food. So, as to beasts or birds, ferce natures, which were reclaimed and made tame or domestic, and served for food; i. e., deers, pheasants, partridges, &c., if the thief knew them to be tame. It could not be committed as to some things whereof the owner might have a lawful property, and “ such whereupon he might maintain an action of trespass ”—i. e., mastiffs, spaniels, greyhounds, bloodhounds, by reason, as Lord Hale says, of the baseness of their nature; nor of some things wild by nature, yet reclaimed by art or industry—i. e., bears, foxes, ferrets, &c., because they served not for food, but pleasure. (1 Hale's P. C., 510, 511.)
As such parts of the common law as formed the law of the Colony of New York on the 19th day of April, 1775, have been retained by the Constitution of this State, subject to the power of the Legislature to alter them (Const., art. 1, § 17), and as dogs were not the subject of larceny at the common law at that time, it is proper to consider whether the Legislature has altered the common law in this particular. At common law the only description of property which could be the subject of larceny, was “ mere movables having an intrinsic value.” Things savoring of the realty and written instruments were added by statutes. (The People v. Loomis, 4 Denio, 380.) The statutes of this State have extended the law of larceny further than the English statutes did. (Ib.) By the 2 R. S., 679, section 363, it is provided that “ any person who shall be convicted of the felonious taking and carrying away the personal property of another, of the value of more than twenty-five dollars, shall be adjudged guilty of grand larceny,” &c. “ Personal property,” as here used, is defined by a subsequent section (2 B. S., 702, §33), “to mean goods, chattels, effects, evidences of rights in action and all written instruments,” &c.
As I understand .section 63 of the statute, it is meant to define the offence of grand larceny in reference to personal property, and to declare that everything which is personal property, which can be, or is held or enjoyed as personal property, is within the protection of the statute. It appears as though the Legislature, instead of entering upon a minute statement of the kinds or species of personal property which could form the subject of larceny, designed that this section should be construed in the most comprehensive manner. It is not more indefinite than is .that still more comprehensive provision of the Constitution of this State, that no person shall be “ deprived of life, liberty or property, without due process of law.” If
The provision of the Constitution underwent judicial consideration in the case of Wynehamer v. The People (3 Kern., 378). That case will be remembered as involving the constitutionality of the late law to prevent intemperance in this State, the Court of Appeals deciding against the law. Comstock, J., in his opinion (p. 396), uses this language: “Now, lean form no notion of property which does not include the essential characteristics and attributes with which it is clothed by the laws of society. In a state of nature property did not exist at all. Every man might then take to his use what he pleased, and retain it, if he had sufficient power; but when men entered into society, and industry, arts and sciences were introduced, property was gained by various means, for the securing whereof proper laws were, ordained.” (Tomlin. Law Dic. “ Property,” 2 Bl. Com., 39.)
“ Material objects, therefore, are property in the true sense, because they are impressed by the laws and usages of society with certain qualities, among which are, fundamentally, the right of the occupant or owner to use and enjoy them exclusively, and his absolute power to sell and dispose of them; and as property consists in the artificial impression of these qualities upon material things, so whatever removes the impression destroys the notion of property, although the things themselves may remain physically untouched.”
If what is or what is not properly depends upon the laws or usages of society, it would be impossible to say that the quality of the exclusive right of the owner to the use or enjoyment of his dog—his absolute power to sell and dispose of it, and the other characteristics and attributes of property—had not been impressed by these laws and usages upon that useful animal. If property is a notion of society—if common consent is the basis of or requisite to its recognition or maintenance—for none of the brute creation could this principle be claimed with more propriety or truth than this one.
In Putnam v. Payne (13 John. R., 312), it was held that any person is justified in killing a ferocious and dangerous dog, which is permitted to run at large by its owner, or to escape through negligent keeping, the owner having notice of its vicious disposition. The action in the court below was to recover for the killing of a dog. The plaintiff had judgment; but the Supreme Court reversed the judgment, for the reason that, under the circumstances, the dog was properly killed. There was no question but what, if the dog had been improperly killed, the action would have been maintainable. This case concedes that there can be and is property in a dog. Whether absolute or qualified is immaterial—it is enough to satisfy our statute against the felonious taking of personal property, that there can be, or is any. In Hinckley v. Emerson (4 Comst., 351), the right of property in a dog was expressly recognized. It was a similar action. The plaintiff, in the court below, proved the value of the dog to be ten or fifteen dollars, and had judgment; and the Supreme Court, on error, affirmed the judgment. The statute allowing dogs attacking sheep to be killed, was referred to by the court as proof that but for the statute the right did not exist. In Bull v. Flagler (23 Wend., 354), which was an action of trespass for killing a dog, it was held that, though under proper circumstances the killing of a dog was justifiable, a needless or wanton destruction of the animal, even to prevent an acknowledged mischief, would be unjustifiable.
It was also held that the opinions of witnesses as to the nature of a dog, for whose destruction an action was brought, were admissible in evidence.' In Dunlap v. Snyder (17 Barb.,
In the year 1857 a law was passed in this State providing for the “incorporation.of associations for improving the breed of domestic animals.” It declares that any corporation formed under it shall have power to raise, import, purchase, keep, breed and sell all kinds of domestic animals. Why are not dogs within the purview of this statute? Although not ranked among domestic animals in the time of or by Lord Hale, yet the estimation in which they have been since' held by society shows that they are no longer considered to be so base as not, on that account, at least, to be the subject of larceny.
If by domestic is meant “ belonging to the house,” who can deny this attribute to the dog ? What animal more domestic? What one appreciates a home more, shows stronger attachments to it, or if it strays from it, is more certain to return to it? In some of its species it serves as a pet ora companion. In others, it assists and takes part in manly sports and recreations.- In others, again, it is the faithful custodian and guardian of property. In none, it may be said, is it entirely divested of usefulness. When the benefits it confers are reflected upon, why is there not a perfect propriety in improving the breed of such an animal? If it comes within the description of domestic animals under this act of 1857, it is certainly property, the subject of larceny.
If the court receives evidence it should not, under the indictment as drawn, the defendant can have his remedy by bill of exceptions.
My judgment is, that the indictment is good as one for grand larceny, and judgment must be rendered for the People on the demurrer, with liberty to the defendant to plead to the indictment.
Judgment for plaintiff.