101 Ga. 563 | Ga. | 1897
An accusation in the county court of Wilcox county charged B. F. Wilcox with the offense of cruelty to a domestic animal, under section 703 of the Penal Code, which provides that, “ Every person who shall instigate, engage in, or do anything in furtherance of an act of cruelty to a domestic animal, shall be punished as for a misdemeanor.” The animal alleged to have been cruelly treated was a dog. The accused demurred to the accusation, on the ground that a dog is not a domestic animal. The demurrer was overruled, and this ruling was sustained upon certiorari; whereupon the accused excepted. The sole question made, therefore, is, whether a dog is a domestic animal. There is some conflict in the decisions of the courts of the different States on the subject; but the decided weight of authority seems to be that a dog is a domestic animal. Some of the leading cases so holding are: State v. McDuffie, 34 N. H. 526; Hurley v. State, 30 Tex. App. 333; State v. Giles, 125 Ind. 124; Dodson v. Mack, 4 Dev. & B. (N. C.) 146, and Shaw v. Craft, 37 Fed. Rep. 317. The case of Patton v. State, 93 Ga. 111, is cited by counsel for plaintiff in error as authority that a dog is not a domestic animal. The sole point decided in that case was, that section 729 of the Penal Code, which is in these words: “All other acts of willful and malicious mischief in the injuring or destroying any other public or private property not herein enumerated, shall be a misdemeanor,” does not apply to injuring or killing animals of any kind, and therefore the willful and malicious killing of a dog is not an indictable offense under that section. The discussion by Justice Lump-kin in that case as to whether or not a dog was property, while quite interesting, was not necessary for the determination of the question as ruled. This court in Graham v. Smith, 100 Ga. 434, held that: “ The owner of a dog has such a property in it as will enable him to maintain an action of trover for its recovery in case of its wrongful conversion.” Whatever the
Judgment affirmed.