Three boys who had killed two farm cats were charged with an offence which could only have been committed if the cats were kept for a "domestic purpose". Local justices had acquitted the boys, in part because there no evidence was before them that the cats that were killed had been kept for a domestic purpose. Allowing the prosecutor's appeal, the Divisional Court held that there was no need to prove that a particular animal was in fact kept for a domestic purpose if it belonged to a class of animals which were ordinarily so kept.
Mr Justice DARLING:
The question in this case arises upon facts which are perfectly plain. The boys who were charged had without any kind of justification whatever killed two cats in circumstances of great cruelty. They were charged under s. 41 of the Malicious Damage Act, 1861. [He read the section.] Now the magistrates declined to convict because they were of opinion that they were not entitled to convict without evidence as to the ownership of the cats at the time of the alleged offence, and without evidence that the cats in question were at the time being kept for domestic purposes. I think they were wrong on both points. I read the section as meaning that if you kill unlawfully and maliciously an animal which, though not the subject of larceny, belongs to a class of animals which, as a class, are ordinarily kept in a state of confinement or for domestic purposes, then the offence is committed, and that in such a case it is not necessary to prove who owned the particular animal so killed, or that the particular animal was ordinarily kept in confinement or for some domestic purpose. Here there was no evidence that these were cats which had become wild. They were cats which were haunting farm premises, and belonged to the class of cats which are ordinarily kept for domestic purposes. That being so, they were within the protection of the section. I may add that I think the section goes further, and not only protects animals of a class which are ordinarily kept in a state of confinement or for domestic purposes, but also protects a particular animal which, though not belonging to such a class, is in fact kept in confinement or for a domestic purpose. The appeal must be allowed.
Mr Justice AVORY:
I agree that the justices took a wrong view of the statute in this case. They were of opinion that it was necessary that there should be evidence as to the ownership of the cats and also that the cats were at the time being kept for domestic purposes. I think neither of those conditions is necessary to satisfy the statute. I base my judgment on this, that cats belong to a genus or class of animals that are ordinarily kept for domestic purposes. There is no doubt that that is the usual description of cats. "Domestic cats" is a well-known expression. That being so, it was not necessary to prove that the particular cats in question were at the time being kept for domestic purposes, although in my opinion there was evidence in this particular case from which the justices might have inferred that these particular cats were being kept for such purposes. I also agree that there was no need for evidence as to the ownership of the cats, and I think it is probable that all that the justices meant was that if they had had evidence of the ownership that would have been sufficient to show that these particular cats were being kept for domestic purposes. The case must be remitted to the justices with this opinion of the Court.
Mr Justice SANKEY:
I agree in thinking that the case must be sent back.