79 N.Y.S. 782 | N.Y. App. Div. | 1902
The recovery is for the value of a dog killed by the defendant. The evidence of the defendant is to the effect that he saw the dog in the pasture on his premises, chasing his sheep; that he followed the dog up, and got close enough so he could see the dog pulling the wool out of the sheep; that the dog ran after the sheep, and grabbed hold of them with his teeth as they were running away from him; and that the defendant followed the dog into the adjoining premises and shot him.
The court charged the law of the case as follows:
“The defendant justifies the killing of the dog, or attempts to justify, in “ his part, at the least, under a statute which provides that any person may kill any dog which he shall see wrongfully worrying or wounding any sheep. The defendant claims that he saw the dog chasing his sheep; the dog ran away when he approached; the defendant followed the dog around for the purpose of shooting him, or in attempting to shoot him, until the dog got some distance away; and that finally he did shoot him. I think I must hold, as a matter of law, that that statute is not a defense, because the dog was not chasing or worrying or wounding any sheep at the time he was shot That statute provides that any person may kill any dog while in the act of chasing, worrying, or wounding any sheep, so that, as a matter of law, that statute is no defense here.”
To this part of the charge the defendant excepted, and requested the court to charge that the defendant had the right to shoot the dog, provided he actually saw the dog worrying or chasing or wounding his sheep, which the court declined to do, and the defendant excepted.
We think the charge-was erroneous, and that the request to charge should have been granted. The language of the statute is, “Any person may kill any dog which he shall see wrongfully chasing, worrying, or wounding any sheep.” At common law a dog might be
Judgment and order reversed, and new trial ordered in county court, with costs to the appellant to abide the event. All concur.