State v. M'Duffie

34 N.H. 523 | N.H. | 1857

Fowler, J.

The indictment in this case is founded on the eighteenth section of the 215th chapter of the Revised Statutes, which is in these words :

“ If any person shall willfully and maliciously commit any act whereby any tree placed or growing for ornament or use in any garden, yard, street, square or other placer, or whereby the real or personal estate of another shall be injured, such person shall be punished by imprisonment in the common jail for a term not less than thirty days nor more than one year, or by fine not exceeding one hundred dollars, or by both of said punishments in the discretion of the court.”

It alleges that the respondent, on the 13th day of October last, at Rochester, in this county, did unlawfully, willfully and maliciously shoot, kill and destroy a dark brindled dog, the property of one Daniel M’Duffie, and part of his personal estate, of the value of $50, and then and there having around his neck a brass collar, with his owner’s name engraved thereon, whereby the personal estate of said Daniel M’Duffie was injured.

The only objection that has been urged to the maintenance of .this indictment, rests on the assumption that dogs lare not the subject of property, and therefore not personal estate capable of being willfully and maliciously injured within the meaning of the statute. We can perceive no foundation for this objection. Dogs are domesticated or tame animals, and as much the subject of property or ownership, as horses, cattle or sheep. Trespass or trover will lie for them. The delivery of a dog is a good consideration for an assumpsit. An assault may be justified in defence of one’s dog. The case of Swans, 7 Coke 18, a; Ireland v. Higgins, Croke Eliz. 125; Comyn’s Dig., Biens F.; 2 Black. Com. 391, 392 and 393, (notes to Chitty’s Ed.)

A dog without a collar is the subject of property, and trover may be maintained for its conversion, even where the statute legalizes the killing of such dog. Cummings v. Peckham, 1 Met. 555.

It is not necessary for the maintenance of an action for killing a dog, that it should be shown to be of any pecuniary value. It is for the jury to judge of the value, after hearing the evidence of the peculiar qualities and properties of the animal. Dodson v. Mack, 4 Dev. & Batt. (N. C.) 146; Dunlap v. Snyder, 17 Barber (N. Y.) 561; Leutz v. Strok, 6 Serg. & R. (Pa.) 34.

By the common law, although the owner might have a lawful property in dogs, and maintain a civil action for any injury in respect to them, larceny could not be committed of them. 1 Hale’s Pleas of the Crown 512. This was said to be in respect of the baseness of their nature, because, though reclaimed and made tame, they serve not for food but pleasure, and so differ from pheasants, swans, &c., made tame, which, though wild by nature, serve for food. 1 Hale’s P. C. 511, 512.

But a man may have property in some things which are of so base a nature, that no felony can be committed of them ; and no man shall lose life or member for them, as of a blood-hound or mastiff. Case of Swans, 7 Coke 18, a; Rex v. Scaring, Russ. & Ry. C. C. R. 350; Norton v. Ladd, 5 N. H. 204.

By an act of the 10th George III., chap. 18, the stealing of dogs subjected the offender to fine, or imprisonment and whipping, upon summary proceedings. Bain’s Justice, Title, Dogs; Rex v. Helps, M. & S. 331.

In New-York, a justice of the supreme court refused to release one indicted for grand larceny in stealing a dog, valued at one hundred dollars, and committed to prison for want of bail, inclining to the opinion that dogs were the subject of larceny under the statutes of that State. People v. Maloney, 1 Parker C.R. 593.

But we do not deem it material to the decision of the question before us, whether dogs are or are not the subject of larceny. Admitting that, by our laws, they are not, it by no means follows that they may not be the subject of the willful and malicious injury punished by the act under which the present indictment was found. The evident design of that act was to afford more effectual protection against injuries to property under aggravated circumstances, by punishing, as criminal offences, acts, which before its passage had been regarded only as civil injuries. And we can see no reason why the property of its owner in a valuable dog is not quite as deserving of protection against the willful and malicious injury of the reckless and malignant, as property in fruit, shade, or ornamental trees, whether standing in the garden or yard of their owner, or in a public street or square, or any other species of personal property.

It is true, the legislature, in order to secure proper responsibility for damages sometimes committed by these animals, have deemed it advisable to enact that no person shall be liable by law for killing any dog found not having around his neck a collar of brass, tin or leather, with the name of its owner or owners carved or engraved thereon. Revised Statutes, chap. 127, sec. 5. But these very provisions pre-suppose the unlawfulness, prior to their enactment, of killing any dogs, and undertake, by a species of outlawry, to sanction the killing of such as shall be found without a particular kind of collar, marked in a particular manner with their owners’ names. The adoption of such an enactment is equivalent to a legislative declaration that the killing of all dogs having the required collars is unlawful and unjustifiable.

The dog, which the respondent is charged with having maliciously killed, is alleged to have been of the value of fifty dollars, and to have worn around its neck a brass collar, with its owner’s name engraved thereon, as required for its protection under the statute. As this dog was the legitimate subject of property, was specially protected by the statute, and must be taken, for the purposes of the present motion, to have been worth fifty dollars to its owner, we entertain no doubt that its willful and malicious destruction, as charged in the indictment, was an injury to the personal estate of its owner, within the meaning of the statute on which the indictment is founded.

The motion to quash must therefore he denied.