31 So. 2d 218 | La. | 1947
The accused, Joe O. Herring, was charged in the City Court of Shreveport in that he "* * * unlawfully and unnecessarily did cruelly kill a domestic animal, to-wit a dog * * *." Upon trial he was convicted and sentenced to pay a fine of $50, and costs. Upon appeal to the First Judicial District Court, Caddo Parish, the conviction and sentence were affirmed. The *1085 defendant has invoked the exercise of our supervisory powers.
The defendant contends that the allegations in the affidavit under which he was tried do not set forth any crime or offense against the laws of the State. He raised this question in the City Court by way of motion in arrest of judgment, and when the case went to the district court on appeal the same question was raised by demurrer, motion to quash, and motion in arrest of judgment.
His attack on the affidavit is twofold: First, that there is no allegation therein that the owner of the dog had paid for and placed a collar around the neck of the dog, a license tax tag, nor that the dog had such tag on his collar at the time it was killed; nor that such dog was not off the premises and out of the control of its owner, as required by Act No.
"Cruelty to animals is the intentional or criminally negligent mistreatment of any animal by any act, or omission whereby unjustifiable physical pain, suffering or death is caused to or permitted upon said animal.
"Whoever commits the crime of cruelty to animals shall be fined not more than one hundred dollars, or imprisoned for not more than ninety days, or both." *1086
Counsel for the State attacked the constitutionality of Act No.
The district court in overruling the motion to quash the affidavit held that Act No.
We are of the opinion that the lower court erred in passing on the constitutionality of Act No.
Act No.
The allegations in the affidavit do not set forth an offense. "Unnecessarily" is not of the same import as "intentionally" or "cruelly negligent mistreatment." No short form was resorted to. Such being the case, the charge must set forth every fact and circumstance necessary to constitute the offense. Article
For the reasons assigned, the conviction and sentence are annulled and set aside. The defendant is hence discharged.
O'NIELL, C. J., dissents.
*1089FOURNET, HAWTHORNE, and HAMITER, JJ., concur in the decree.