156 N.C. 628 | N.C. | 1911
Tbe defendants were indicted in tbe court below for tbe crime of willfully killing a dog, tbe property of tbe prosecutor. It would be vain and unprofitable to discuss, for tbe purpose of deciding, tbat a dog is a living creature witbin tbe meaning of Eevisal, sec. 3299, under which tbe indictment was drawn and presented by tbe grand jury. We bave beld tbat be is a subject of property, a domesticated animal, and not merely ferce naturw, and tbat a civil action may be maintained for damages caused by an injury to bim, though be may have been guilty of some “youthful indiscretion” or harmless transgression. A dog is like a man in one respect, at least— tbat is, be will do wrong sometimes; but if the wrong is slight or trivial, be does not thereby forfeit bis life. Tbe opinion of Judge Gaston in Dodson v. Mock, 20 N. C. (Anno. Ed.), 282 (4 Dev. and Bat., 146), has been generally taken as a clear and accurate statement of tbe law in regard to tbe right of property in this much petted and sometimes useful animal. Tbat was' a civil action to recover damages for killing tbe plaintiff’s dog, tbe defendant contending tbat a dog was not property, and, therefore, no action would lie for any injury to bim. In view of this contention, Judge Gaston said: “It was not necessary for tbe maintenance of tbe action tbat tbe plaintiff’s dog should be shown to bave pecuniary value. Dogs belong to tbat class of domiciled animals which tbe law recognizes as objects of property, and whatever it recognizes as property it will protect from invasion by a civil action on tbe part of tbe owners. It is not denied tbat a dog may be of such ferocious disposition or predatory habits as to render bim a nuisance to tbe community, and such a dog, if permitted to go at large, may be destroyed by any person. But it would be monstrous to require exemption from all fault as a condition of existence. Tbat the
It was next held in S. v. Latham, 35 N. C., 33, that the owner has such property in a dog that an indictment for malicious mischief in killing him will lie. These cases were followed by others, deciding different questions, but all recognizing the general rule that a dog is property. Perry v. Phipps, 32 N. C., 259; Mowery v. Salisbury, 82 N. C., 177 (right to tax them). In S. v. Latham, supra, the indictment was for malicious mischief, and the judge, by his charge, let the guilt of the defendant turn altogether upon an affirmative answer to the question whether the defendant, in killing the dog, was acting in defense of his property, without regard to whether or not he did so from malice to the owner. This was held to be error, as the gist of the offense was malice to the owner, and the killing, from passion excited against the dog by the injury or threatened injury to property, was not any defense, provided the defendant was actuated by malice towards the owner. In that case, Judge Nash took occasion to say: “By the old authorities, a dog was not a subject of larceny, because it was without value. But, notwithstanding, it is a species of property, recognized as such by the law, and for an injury to which an action at law will be sustained. Dodson v. Mock, 4 Dev. and B., 148. Many actions have been brought in this State, and in England, for injuries to such property. 8 Bl. Com., 393-4. If, then, dogs be personal property, they are protected by the law, and the owner has such an interest in them as that he can protect and defend them; and the destruction of them, from' malice to the owner, is in law malicious mischief.”
Although counsel did not so contend, we will say that the dog is not an animal of such base nature or low degree, whatever
It would, therefore, be strange if a person is privileged to take the law into his own hands and redress supposed and past grievances by an extrajudicial method or remedy, under circumstances which may not entitle him to sue for and recover damages in a civil action. Such a view of the law was adopted in Dodson v. Mock, 20 N. C., 282 (4 Dev. and Bat., 146), but it has been said of that case by the Court in Morse v. Nixon, supra (opinion by Chief Justice Pearson), that Judge Gaston fell into error in his dictum that a dog may, by reason of his predatory habits, become a public nuisance, so that any person may kill him in order to abate the nuisance, although not specially injured or aggrieved. We think the law of this State is correctly stated by Judge Gaston (as far as he went) in Parrott v. Hartsfield, 20 N. C., 242 (Anno. Ed.), or 4 Dev. and Bat., 110, as follows: “The law authorizes the act of killing a dog found on a man’s premises in the act of attempting to destroy his sheep, calves, conies in a warren, deer in a park, or other reclaimed animals used for human food and unable to defend themselves. Barrington v. Sumers, 3 Lev., 28; Leonard v. Wilkins, 9 John., 233.” In the actual and necessary defense of property, it is not necessary to show that the owner of the dog
So far as this ease is' concerned, and the point raised by the defendant, we do not think the statute has materially changed the law as formerly declared. The defendant is guilty at common law, and surely under the statute, if he unjustifiably killed the dog; and what is an unwarranted or unjustifiable killing has already been fully stated.
Upon the facts of this case, we are of the opinion, and so decide, that the defendants were guilty, and that while the. judge erred when he charged that if the dog was actually killing'the turkeys it would be no defense or justification for the killing, this error was harmless, as there was no evidence that the danger to the turkeys was imminent and the necessity to kill was apparent. The fact that the dog had visited the premises before, if it had been proven, would not justify the defendant’s act in slaying him. It is not the dog’s predatory habits, nor his past transgressions, nor his reputation, however bad, but the doctrine of self-defense, whether of person or property, that gives the right to kill. The dog was not in a position, with reference to the turkeys, to make the danger to them imminent, he being in the road or street outside the defendant’s yard, with an impassable fence and closed gate between him and them. He could easily have been driven away without resorting to extreme punishment, for it was nothing but punishment inflicted upon him for his supposed past transgressions, that is, resentment and retaliation. It was an act unlawful at common law and willful within the meaning of the statute, even as construed in S. v. Clifton, 152 N. C., 802.
No error.