The defendant was convicted under North Carolina's cruelty to animal statute for the killing of his neighbor's chickens. The defendant appealed to the Supreme Court because the trial court refused to give some of his instructions to the jury. The Supreme Court that the lower court was correct and affirmed.
STATE V. NEAL
(Supreme Court of North Carolina. April 20, 1897.)
CRUELTY TO ANIMALS - INDICTMENT - EVIDENCE - INSTRUCTIONS.
1. It is no defense to an indictment for cruelty to animals, under Code, section 2490, that the chickens killed were destroying peas in the garden of defendant's father.
2. The needless killing of chickens is cruelty, within Code, section 2482, through done without torture.
3. It is no defense to an indictment for cruelty to animals that the killing was done on an "impulse of anger."
4. Where a portion of an instruction is erroneous, the court need not give so much of it as is good.
5. An indictment charging that defendant did "knowingly, willfully, and needlessly act in a cruel manner towards a certain fowl, to wit, a chicken, by killing the said chicken," is a sufficient charge of cruelty, under Code, section 1183.
6. On a trial for cruelty in killing chickens, a charge that defendant must be justified in killing was erroneous.
7. Defendant need not prove justification under an indictment for cruelty to animals beyond a reasonable doubt.
8. A conviction for cruelty to animals is sustained by proof of impaling a chicken on a stick, and beating a hen to death.
Appeal from superior court, Stanley county; Norwood, Judge.
Oscar Neal was convicted of cruelty to animals, and appeals. Affirmed.
The defendant was charged with cruelty to animals, and was indicted, under section 2482 of the Code, for killing chickens, the property of R. L. Morton, as follows: "The jurors," etc., "present that defendant," etc., "did with force and arms knowingly, willfully, and needlessly act in a cruel manner towards a certain fowl, to wit, a chicken, by killing said chicken, the said chicken being a useful fowl, and being the property of R. L. Morton, contrary to the form of the statute," etc. It was in evidence that the defendant and prosecutor lived near each other. Prosecutor owned chickens, and defendant owned chickens. Prosecutor's chickens sometimes went on the premises of the defendant, and defendant's chickens would frequently go on the premises of prosecutor. The defendant J. F. Neal had sown near his house some peas, and sometimes prosecutor's chickens would go on the ground where the peas were sown, as well as defendant's chickens. Defendant Oscar Neal, on one occasion, pursued one of the prosecutor's chickens across the lot of one Mrs. Freeman, and into a brush heap near the pea patch of the defendant, but not in or on said pea patch. Oscar Neal took the chicken from the brush heap, put his foot upon its head, and, his hands holding its legs, pulled its head off, and carried it and threw it into the yard of the prosecutor, in the presence of the prosecutor's wife, prosecutor being away from home. This was not upon the land of defendant. It was also in evidence that at another time the defendant Oscar Neal knocked one of the prosecutor's chickens over with a stick, and thereupon sharpened one end of a lath, and stuck it through the neck of the chicken, and carried it to the prosecutor's house, and threw it into his yard. At one time the defendant offered to pay the prosecutor for the chickens that were killed. Defendant claimed that the prosecutor's chickens bothered his pea patch. R. L. Morton testified: "I had some chickens killed in the spring of 1895. Saw Oscar Neal kill them; pulled it from under the brush, put his foot on the head, and pulled the body, and pulled its head off. He commenced chasing chickens on Mrs. Freeman's land, but caught and killed it on his own land. I had seen Oscar Neal and Wilbur Neal chasing chickens before that on Mrs. Freeman's land and on their own land. There was corn planted near there. No corn where the chickens were killed. Saw them catch but one. Did not see J. F. Neal do anything, but I talked with him about it. He proposed to strike a line between us, and each man kill every chicken that crossed the line. I refused to agree to this. He said that he would do that way. I saw some five or six chickens that had been killed. One hen had had a stick run through its neck. I had talked to Oscar about beating my mule, and I suppose he did not like it much." On cross-examination witness stated that Neal's line was about 75 yards from his. "Neither of the Neals had ever said anything about the chickens bothering him, nor told me to put them up, before the chickens were killed. Mrs. Neal told me to keep my chickens of their land, but this was after the chickens were killed. I asked Oscar where he killed the chicken. 'Is that my chicken?' He said, 'I think it is.'" On redirect examination the witness stated that Neal's chickens frequently came to his house.
Mary Morton, wife of previous witness, testified that Oscar Neal killed three of their chickens. "I saw him kill two. He had before killed one, and sent it to the house by the children, and threatened to kill the last chicken I had. I saw him knock over one little chicken, and then strike it with a stick, and then he sharpened the stick, and stuck it through the chicken, and brought it to me on the stick. Afterwards he brought me one with its head off, and said, 'Don't you hate to see this bitch?' I saw Wilbur and Oscar Neal running our chickens, and chunking them. They beat one hen that had little chickens, so that she died, and the young ones perished. I did not actually see Oscar kill but two chickens, but he brought the first one to me on a stick. I only raised 20 out of 60 young chickens."
Joshua Russell testified: "I saw Oscar running a chicken. He pulled its head off. Morton asked him if that was not his chicken, and he said, 'I think it is,' Morton was where he could see the chicken killed, but I don't know whether he saw it or not."
Israel Freeman testified: "I saw Oscar chasing a chicken. It ran under the bushes, and he jabbed at it; sharpened a stick, and stuck it through the chicken, and threw it in Morton's yard. Mrs. Morton said, 'Why didn't you have the stick in the chicken?' Morton was coming that way, and could have seen Oscar kill the chicken."
Another witness testified: "Wilbur and I went out one morning, and found our chickens and Morton's in our pea patch. I killed one of Morton's and carried it to his house, and gave it to him." "State whether the chickens were destroying your peas at the time you killed them." (Objected to by the state as incompetent testimony. Objection sustained. Defendant excepted.) "I had told both Mr. and Mrs. Morton to keep their chickens off our peas before I killed any of them. I did not pull off the first chicken's head. I did pull off the head of another. It seemed to be nearly dead. I supposed I killed it as I was throwing all about there. I stuck a stick under it, and carried it to Morton. I killed three, and carried them all to him, and offered to pay him. He said I did not owe him a cent."
J. F. Neal, the other defendant, testified: "I did not kill any of these chickens. Did not tell any one to kill them. Did not see any of them killed. Morton and I had a talk about the chickens before they were killed. I had told him to keep them off the peas, and to keep his chickens away, and he and his wife both said that they could not do it. Morton told his wife to put the chickens up. My chickens went into the pea patch, and then Morton's would come there." On the trial before the justice of the peace, Morton swore that he had not seen any of the chickens killed; that Oscar had told him that he had killed the chickens.
J. W. Bostian testified: "I head part of Morton's testimony at the trial before the justice of the peace, and he said that he did not see Oscar kill any of the chickens. General character of J. F. Neal, Oscar Neal, and Mrs. Neal good; that of Morton not good."
Mrs. Neal testified: "I told Morton to keep his chickens off of the peas before the chickens were killed. Told both Morton and his wife. I told them only once."
G. W. Lowder testified that he forbade Morton from moving on the land until he got paid for it. At the conclusion of evidence, the solicitor stated that he would not ask a verdict against J. F. Neal, but only against Oscar Neal, his son.
Defendant asked the following special instructions:
(1) That chickens are not embraced in the list of animals authorized to be impounded under our statute in stock-law territory; and therefore, if the jury believed that the defendant had notified the prosecutor to keep his chickens from trespassing on defendant's crop, that defendant had made reasonable efforts to prevent the injury to his crop without killing the chickens, and defendant killed them simply to prevent injury to his crop, then the killing would not be willful, within the meaning of the statute under which defendant is indicted, and defendant would not be guilty. (Not given.)
(2) That chickens are not such animals as were allowed to be impounded at common law, and therefore, if the jury believe that defendant killed them without needless or willful torture, but simply to prevent them from destroying his crop, then defendant would not be guilty. (Not given.)
(3) That, in order to convict defendant, the jury must find that he willfully killed the chickens, and that the term 'willfully' implies that the act was done knowingly and of stubborn purpose. (Given.)
(4) That, in order to convict the defendant, the jury must find that the killing of the chickens was the development of a preconceived purpose, and not an impulse of anger excited by unexpectedly seeing a repetition of the annoying trespass; and therefore, if the jury believe that defendant killed the chickens without willful torture, and without any purpose to do the prosecutor a willful injury, but simply to prevent injury to his crop, then defendant would not be guilty. (Not given.)
(5) That the statute under which defendant is indicted relates only to offenses where the injury is directed against the animal killed or wounded, where there is an intent on the part of the offender to willfully injure, torture, wound, or kill the animal, without reference to the owner of the animal; and therefore, if the jury should believe that defendant killed the chickens without any intent to willfully injure, wound, or kill the chickens, then he would not be guilty. (Not given.)
(6) That in no view of the evidence can defendant J. F. Neal be found guilty. (Given.)
(7) That in no view of the evidence can defendant Oscar Neal be found guilty. (Not given.)
The court refused to five the instructions, except the third and sixth, and defendant excepted. Defendant offered to show that the chickens were eating his peas, and that he killed them to prevent them from destroying the same. The solicitor objected to this evidence, and the objection was sustained, and defendant excepted. The court charged the jury, among other things, that, in order to acquit the defendant, they must believe from the evidence, beyond a reasonable doubt, that he was justified in killing the chickens, and that he would not be justified if he killed them to prevent the destruction of his crop. Verdict of guilty. Motion in arrest of judgement, on the ground that the indictment failed to allege that the killing of the chickens was by torture, cruelty, wounding, or mutilation. Motion overruled, and defendant excepted. Motion for new trial for errors assigned as follows:
(1) That the court erred in refusing to give the first, second, fourth, fifth, and seventh instructions asked.
(2) That the court erred in charging the jury that the defendant must be justified in killing the chickens, and that he would not be justified if he killed them to prevent the destruction of his crop.
"It is adjudged that Wilbur Neal be acquitted, and J. F. Neal and Oscar Neal pay a fine of $2.50 each, and cost." Defendant appealed.
Adams & Jerome and S. J. Pemberton, for appellant. The Attorney General and J. M. Brown, for the State.
CLARK, J. This is an indictment for cruelty to animals, to wit, sundry Stanley county chickens, "tame villatic fowl," as Milton styles them in stately phrase. The prosecutor and defendants lived very near to each other, and their chickens were exceeding sociable, visiting each other constantly. But, after the defendants had sown their peas, they had no peace, for the prosecutor's chickens became lively factors in disturbing both. The younger defendant, Oscar, as impetuous as his great namesake, the son of Ossian, pursued one of the prosecutor's chickens clear across the lot of another neighbor, one Mrs. Freeman, and, intimidating it out into seeking safely in a brush pile, pulled it out ignominiously by the legs, and putting his foot on his victim's head, by muscular effort, pulled its head off. Then, in triumph, he carried the headless, lifeless body, and threw it down in the prosecutor's yard, in the presence of his wife, also letting drop some opprobrious words at the same time. The prosecutor was absent. Another chicken Oscar also chased into the brush pile, and, sharpening a stick, jabbed it at said chicken, and through him, so that he then and there died; and Oscar, carrying the chicken impaled on his spear, threw it over the prosecutor's yard. He knocked over another, and, impaling it in the same style, also threw its lifeless remains over into the prosecutor's yard, as the Consul Nero caused the head of Asdrubal to be thrown into Hannibal's camp. On yet another occasion, Oscar did beat a hen that had young chickens, which, with maternal solicitude, she was caring for, so that she died, and the young ones, lacking her care, also likewise perished. The aforesaid Oscar, on other divers and sundry times and occasions, was seen "running and chunking" the prosecutor's chickens. The other defendant, Oscar's father, proposed to the prosecutor "to strike a dead line, and each one kill everything that crossed the line." The offer seemed too unrestricted, and the cautious prosecutor, whose thoughts were "bent on peace" as much as his chickens were on peas, firmly declined the dead-line proposition; but Oscar's father said that he "guessed he would do it that way." As the evidence limited his proceedings to this declaration of war, without any overt act, a nol pros was entered as to him, and Oscar was left alone to bear the brunt. "Having," in the language of Tacitus, "Made a solitude, and called it peace," he naturally protests against being now charged with the odium and burdens of war, which his honor has assessed at a fine of $1.00 and costs. Both defendants and Oscar's mother went on the stand. There was no substantial contradiction of the state's evidence, but all three testified that the prosecutor had been notified to keep his chickens out of their pea patch, or they would be killed. This is the "round, unvarnished tale" of the evidence. The defendant's counsel interposed every consecutive defense from a plea to the jurisdiction to a motion in arrest of judgement. The case was tried before a justice of the peace, and the defendant appealed. In the superior court a bill of indictment was found by the grand jury, and the defendant was tried thereon.
Chickens come within the very terms of Code section 2482, describing the creatures intended to be protected from man's inhumanity, - "any useful beast, foul or animal." Pigeons were held to be within it. State v. Porter, 112 N. C. 887, 16 S. E. 915 . The defendants offered to show by Oscar himself that "he killed the chickens to prevent them from destroying the peas." This was to show justification, and was properly rejected. The defendants had no more right to destroy a neighbor's chickens when thus found damage feasant than they would his cattle. The remedy is by impounding them till damage paid, or by an action for damage. Their destruction is not necessary to his rights. Clark v. Keliher, 107 Mass. 406 , which was a case "on all fours" with this, for killing a neighbor's chickens while trespassing after notice to keep them out. In this state, in like manner, it has been held that one has no right to lay poison, though on his own premises, for another's "egg-sucking dog" ( Dodson v. Mock, 10 N. C. 146 ); nor to kill a "chicken-eating hog," as a nuisance ( Morse v. Nixon, 51 N. C. 146 ); nor a "breachy hog," for the same reason ( Bost v. Mingues, 64 N. C. 44 ). These cases refer to and distinguish Parrott v. Hartsfield, 20 N. C. 110 , where it was held lawful to kill a "sheep-stealing" dog about to kill sheep. This is because of the fact that such animal could not be easily caught and impounded, nor could he be sold for anything to pay damages. In Johnson v. Paterson, 1 Conn. 1 , a very long and learned opinion sustains the proposition that one is not justified in stewing poison on his premises, whereby a neighbor's chickens were killed, though notice was given that this would be done if they were not kept off. It is true these were actions for damages, and not indictments for cruelty to animals; but if, even in such cases, the trespass was no defense, certainly evidence to show the trespass by an animal is incompetent in an indictment whose gist is merely the fact of cruelty or needless killing. State v. Butts, 92 N. C. 784 .
The first prayer for instruction was properly refused. If this were stock-law territory (which is not in evidence), the killing would be none the less willful. State v. Brigman, 94 N. C. 888 .
The second prayer was also properly refused. Chickens could be impounded at common law, and, besides the "needless killing" of the chickens is of itself cruelty, though done without torture. State v. Porter, supra .
The third prayer - that the jury must find that the defendant "willfully, knowingly, and of stubborn purpose killed the chickens" before they could convict - was given.
The fourth prayer was properly refused. The willful and needless killing of the prosecutor's chickens was none the less cruelty to them because done on an "impulse of anger." Says Burwell, J., in State v. Porter, supra : "Since the enactment of this statute, it has been unlawful in this state for a man to gratify his angry passions or his love for amusement and sport at the cost of wounds and death to any useful creature over which he has control."
The fifth prayer, which contained this: "If the defendant killed the chickens without any intent to willfully * * * kill them, he would not be guilty," - was properly refused. There was no aspect of the evidence tending to show an accidental killing. If the rest of the prayer were correct, it being incorrect as an entirety, the court was not called upon to dissect it, and give so much as was good.
The sixth prayer was given; and the seventh, from what has already been said, was properly refused.
The judge stated a correct proposition of law when he told the jury that the defendant was not justified if he killed the chickens to prevent the destruction of his crop ( State v. Butts, supra. ), for he could have prevented it by impounding them, or he could sue for damages; but he erred in telling them that the defendant must be justified in the killing. The indictment being that the defendant did "knowingly, willfully, and needlessly act in a cruel manner towards a certain fowl, to wit, a chicken, by killing said chicken, the said chicken being a useful fowl," etc., this, ejecting refinement (Code, section 1183), is an intelligible charge that the defendant was guilty of cruelty to the useful fowl, by needlessly and willfully killing it. But the burden was on the prosecution to prove the "knowingly, willfully, and needlessly." It was not incumbent on the defendant to prove justification. It is not like the killing of a human being, which, if done with a deadly weapon, raises a presumption of malice ( State v. Rollins, 113 N. C. 722, 18 S. E. 394 ); nor yet like proof of a sale of liquor, which being shown, the burden devolves upon the defendant to show the license, because it is a matter peculiarly in his own knowledge ( State v. Emery, 98 N. C. 668, 3 S. E. 636 ); nor like cases where an act is made punishable, irrespective of intent, in which, the act being shown, the burden shifts to the defendant ( State v. Glenn, 118 N. C. 1194, 23 S. E. 1004 ). And it was still greater error to charge that the defendant must prove the matter of justification beyond a reasonable doubt. Even where the burden shifts to the defendant he needs only to prove it "to the satisfaction of the jury." State v. Ellick, 60 N. C. 26 . But this error in the charges was a harmless error, for there was no evidence tending to show that the defendant was justified; and the court properly told the jury that, if they believed the evidence, they should find the defendant guilty, for there was no conflict of evidence; and it amounted to that, since there was no evidence which made a legal defense.
In response to the third prayer, the court instructed the jury that they could not convict unless they found that the defendant "knowingly, willfully, and of stubborn purpose" killed the chickens. This is not a case of "intent," which is an inference of inner motive to be drawn by the jury ( State v. Coy, 119 N. C. 901, 26 S. E. 120 ), but of conduct, cruelty, independent of other intent than willfulness; and the defendant's own evidence proved that the killing was done willfully, and the charge, substantially, that, if the jury believed the evidence, he was guilty, was correct ( State v. Woolard, 119 N. C. 779, 25 S. E. 719; State v. Riley, 113 N. C. 648, 18 S. E. 168 ).
What has already been said disposes of the motion in arrest of judgement. The defendant understood fully the charge against him. Code, section 1183. Section 2490 provides that "cruelty" shall be held to include every act, etc., whereby unjustifiable physical pain, suffering, or death is caused. While the indictment is not carefully drawn, and is indeed less accurate than the warrant originally issued by the justice, the charge of "needlessly acting in a cruel manner by killing" is a sufficient charge of cruelty, and is sustained by the uncontroverted proof of impaling one chicken on a sharp stick, and beating the hen to death. Affirmed.