This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
Appellant, Melvin Troyer, appeals the judgment of the Wayne County Municipal Court convicting him of attempting to catch or kill a non-game bird. We reverse and remand.
Troyer resides on a farm in Orrville, Ohio, ten acres of which is dedicated to the raising of exotic and domestic birds. Troyer has been in the bird business for approximately forty-five years and, with some of the more exotic breeds valued at up to $3,000 a pair, it provides him his primary source of income.
Over the years that Troyer has been in this business, he has experienced problems with the great horned owl. The great horned owl is a predatory bird, indigenous to Ohio, which Troyer testified had preyed upon and killed many of the birds in his flock. In an effort to thwart these attacks, Troyer placed several pole traps in and around the areas where his birds were located. A pole trap is essentially a leg hold trap mounted on top of a post that is approximately twelve to fifteen feet in length.
In August 1996, Officer Tom Jones, from the Ohio Division of Wildlife, made a routine inspection of Troyer's property. While there, Jones noticed the pole traps Troyer had erected. Believing the traps constituted a violation, Jones issued Troyer a citation. A jury trial ensued, and the jury found Troyer guilty of attempting to catch or kill a non-game bird, in violation of R.C. 1533.07. Troyer appeals, naming two assignments of error. We have reversed the order for ease of discussion.
II. THE TRIAL COURT ERRED WHEN IT DETERMINED THAT OHIO REVISED CODE SECTION 1533.07 WAS NOT A VIOLATION OF APPELLANT'S CONSTITUTIONAL RIGHT TO PROTECT HIS PROPERTY.
A. History and Overview
Prior to October 1969, R.C. 1533.07 stated, in pertinent part:
No person shall catch, kill, injure, pursue, or have in his possession * * * any bird other than a game bird * * *.
This section does not prohibit * * * the killing of any hawk or owl doing damage to property.
In October 1969, the statute was amended. With only one intervening modification (which is insignificant for our purposes here), the current statute reflects the 1969 amendment word for word. The current statute reads:
No person shall catch, kill, injure, pursue, or have in his possession * * * any bird other than a game bird * * *.
* * Hawks or owls causing damage to domestic animals or fowl may be killed by the owner of the domestic animal or fowl while such damage is occurring. Very few Ohio courts ever interpreted the older version of R.C. 1533.07 (or G.C. 1408, predecessor section to R.C. 1533.07), and although the relevant substance of the 1969 amendment has remained unchanged for twenty- eight years, it appears that the new language has never been reviewed or interpreted in any reported Ohio case. Such has become our difficult task.
It is not difficult to determine that the legislature's purpose in enacting R.C. 1533.07 was for the protection of certain of Ohio's wildlife. It is well settled that the state, in the exercise of its police power, has the authority to make such regulations in conservation of the wildlife within its jurisdiction. State v. Brinkman (1941), 33 Ohio Law Abs. 362, 363. The legislature is afforded broad discretion in this area and, so long as the regulations do not offend the constitution, the courts will not evaluate whether the legislature has adopted the best means possible for achieving the desired objective. Id.
The constitutional provision at issue in this case is Section 1, Article I, Ohio Constitution, where certain "inalienable rights" are specified. Among these natural rights is included "acquiring, possessing, and protecting property." (Emphasis added.) If, then, a statute is construed in such a way as to make the defense of property a crime even when such defense is reasonably necessary, the constitutionality of such statute must necessarily be questioned. See Brinkman, supra at 364.
B. The Facts of the Current Case
"[T]he right of defense cannot be prescribed within the limits of a narrow technical rule." Aldrich v. Wright (1873), 53 N.H. 398, ----, 16 Am.Rep. 339, 342. The facts which will reasonably justify the killing of a wild animal, in apparent violation of some statute, must be decided on a case-by- case basis. State v. Rathbone (1940), 110 Mont. 225, ----, 100 P.2d 86, 93. We will look, therefore, to the individual facts presented in this case.
The state argues in the current case that Troyer violated R.C. 1533.07 by attempting to take or kill an owl (and neither party disputes that this is not a game bird) at a time when damage to property was not occurring. The state essentially argues that the owl is not actually committing damage, as the statute would seem to require, until it has caught up one of Troyer's birds in its beak or talons. In fact, the state contends that the mere erection of the pole traps was a violation of the statute because Troyer was, at that point, attempting to catch or kill the owl at a time when the owl was not causing any damage. Troyer, on the other hand, argues that once the owl has alighted on the pole trap by his birds, it is already in the process of committing damage because the perched landing is all part of the hunt.
At trial, Troyer presented both his own testimony, from personal experience, and that of Dr. Les Niehouse, an expert concerning the hunting habits of the great horned owl. As stated earlier, Troyer testified that he had lost many birds due to great horned owls preying upon them. Dr. Niehouse testified that great horned owls are abundant in Ohio and the largest common raptor indigenous to the state. The owl, which hunts only at night, generally locates its prey by sound, then flies to a high observation perch near the sound (hence, the pole traps) and attempts to locate its victim by sight. Once the owl has spotted its prey, it swoops down silently, catches the animal, and kills it on the ground. Testimony indicated that once an owl has discovered a flock of birds, it will return to the location repeatedly until all the birds are destroyed. Testimony also indicated that great horned owls do not necessarily just kill when hungry. Sometimes, if the game is plentiful, they may kill their prey and eat only the head. Troyer testified that the use of pole traps was the only effective means of preventing these attacks. When questioned about the possibility of placing netting over the property, the state's witness, Jones, conceded that this was not a feasible option for Troyer's ten acres.
Looking at this case on its individual facts, then, as we believe we must, the question which must be determined is whether R.C. 1533.07 adequately honors Troyer's constitutional right to protect his property under the circumstances presented, or whether it unconstitutionally abridges that right. Interpreting the statute as the state suggests, Troyer could not legally kill an owl unless it actually had one of his birds in its beak or talons. This interpretation creates an insurmountable obstacle in many ways.
First, owls hunt only at night, "at a time when no patrol can successfully operate." Rathbone, supra at ---, 100 P.2d at 89. However, in order for Troyer to legally catch or kill the owl, he or an employe of his must somehow patrol his ten acres on a nightly basis. Second, assuming a patrol would not be cost prohibitive, to be effective, the posted guard would have to be at precisely the right place at precisely the right time. He cannot kill the owl prior to the attack and if, for instance, he should happen upon the owl immediately after an attack, as it sat on the ground consuming its victim, he could not lawfully kill it then, either, because once the bird is dead, the damage is no longer occurring. Third, once an owl is spotted, merely shooing it away would only result in its later return. See Aldrich, supra at ---, 16 Am.Rep. at 351. Therefore, the guard must have some means (in the dark, no less) of catching or killing the owl without killing the bird that must necessarily be in its grasp at the time. Otherwise, the defense is rendered as dangerous as the attack. However, fourth, and most ironic of all, even these extreme measures would not save Troyer. Based on the state's arguments concerning the pole traps, the mere act of patrolling the property in search of offending owls would constitute an "attempt" to catch or kill one, which would again land Mr. Troyer in the situation in which he today finds himself. Under the specific circumstances of this case, we believe that if the statute were given the construction posed by the state, Troyer's protection under the constitution would be rendered a nullity notwithstanding its plain, "inalienable" guarantee.
C. Ohio Case Law
As indicated, few Ohio cases have ever interpreted R.C. 1533.07, and our search has revealed none that have ever interpreted the 1969 amended language, "while such damage is occurring." However, two Ohio common pleas courts have applied G.C. 1408 (predecessor section to R.C. 1533.07) to similar facts as here. In Meyers v. State (1931), 29 Ohio N.P. (N.S.) 330, the defendant was convicted by the justice of the peace for killing a barn owl, in violation of G.C. 1408. The Hamilton County Common Pleas Court reversed the conviction, stating, "The plaintiff in error showed by very clear evidence that this loss [[[the killing of at least 100 chickens] had occurred, and that at the time he killed the bird he was on the lookout for the offending bird * * *. It seems a thoroughly good defense * * * and the plaintiff in error should have been acquitted." Meyers, supra at 332.
Similarly, in Brinkman, supra, the Hancock County Common Pleas Court reversed a decision finding the defendant guilty of killing pheasants out of season. The defendant argued that the pheasants had been consuming his soy bean crop. Id. at 363. The court noted that, " 'In general, a statute forbidding the killing of game under penalty does not apply to a killing which is necessary for the defense of person or property." ' Id., quoting 24 American Jurisprudence 333, Section 12. The court went on to hold:
This is a case in which the activities of the division of conservation of the State of Ohio have come in conflict with the fundamental and inalienable right that every land or property owner has to defend his property. To the extent that this right has been abrogated the statute in question is unconstitutional.
Id. at 365.
D. Case Law Outside of Ohio
Although case law in Ohio is scant on the subject, a purview of cases from the higher courts of other jurisdictions presents a nearly unanimous voice proclaiming that property owners have an inalienable, constitutional right to defend against wild animals, even to the point of killing them, when reasonably necessary to protect their property.
In Aldrich, supra, which appears to be the seminal case on the subject, the defendant was charged with killing minks out of season. There was evidence that several minks were approaching his flock of geese and that he shot them in an effort to protect his birds. The New Hampshire Supreme Court held that while the state statute might lawfully abridge the defendant's right to hunt, "it had put him under no obligation to suffer the minks to eat, injure or annoy his domestic fowls." Id. at ---, 16 Am.Rep. at 341. The court stated that the dangerous character of the assailant was a legitimate basis for apprehending danger and employing a speedy means of defense, id. at ---, 16 Am.Rep. at 343, and held that "the right of defense is the right to do whatever apparently is reasonably necessary to be done in defense." Id. at ---, 16 Am.Rep. at 342.
In State v. Ward (1915), 170 Iowa 185, 152 N.W. 501, the Supreme Court of Iowa asked the question, "Is it open to the defendant to justify an admitted killing by showing a reasonable necessity in defense of person or property?" Id. at ---, 152 N.W. at 502. In that case, the defendant had suffered significant property damage by a large herd of deer. Ultimately, the defendant shot one of the culprits, in violation of a state statute. The court found that the deer that had been shot "was capable of doing, and was threatening to do, great injury to defendant's property." Id. The court held that, "If in this case it was reasonably necessary for the defendant to kill the deer in question in order to prevent substantial injury to his property, such fact, we have no doubt, would afford justification for the killing." Id .
In Commonwealth v. Gilbert (1924), 5 Pa.D. & C. 443, the defendant shot and killed a deer in violation of a Pennsylvania statute. The defendant worked for an orchard owner who had suffered great damage by marauding deer, so the defendant shot one at his employer's direction. Id. at 444. At the time the doe was killed, it was in the orchard, but causing no damage to it. Id. The court found that the killing was done in apprehension of future damage, based on the knowledge of past depredations. Id. at 446. It held that the killing "was reasonably necessary for the protection and preservation of the crops of [the defendant's] employer" and that, insofar as the statute rendered his actions criminal, it was unconstitutional. Id. at 447.
Similar decisions include that of the Washington Supreme Court in State v. Burk (1921), 114 Wash. 370, 375-376, 195 P. 16, 18 (stating that a statute forbidding the killing of elk does not apply where such killing is reasonably necessary to protect property); the Massachusetts Supreme Court in Commonwealth v. Higgins (1931), 277 Mass. 191, 194, 178 N.E. 536, 538, (stating that persons have a right to protect their property by every reasonable means); the Montana Supreme Court in Rathbone, supra at ---, 100 P.2d at 91 (stating that if the statute which prevented the killing of elk out of season was construed to preclude killing an elk when necessary to defend property, the statute was unconstitutional); a Kentucky Court of Appeals in Commonwealth v. Masden (1943), 295 Ky. 861, ----, 175 S.W.2d 1004, ---- (stating "it is generally recognized that one has the constitutional right to defend his property against imminent and threatened injury by a protected animal even to the extent of killing the animal"); an Alabama Court of Appeals in Cotton v. State (1944), 31 Ala.App. 399, 400, 17 So.2d 590, 591 (finding that the killing of game protected by statute is not prohibited when reasonably necessary to protect property); and the Wyoming Supreme Court in Cross v. State (1962), 370 P.2d 371, 378 (quoting Masden, supra with approval).
We wish to note, at this point, that none of the cases we unearthed in our research indicated that the species dealt with was endangered. Given the age of many of our sources, this is a variable that may well never have been considered. Because we do not deal with an endangered species here, we find the foregoing authorities applicable and persuasive to the case at bar. However, R.C. 1533.07 also prohibits the taking of bald or golden eagles or ospreys "at any time" except for educational purposes. We have not been called upon to consider the constitutionality of that language and do not purport to do so in the analysis that follows.
E. Constitutionality of R.C. 1533.07
It is a well settled principle in Ohio that statutes are afforded a strong presumption of constitutionality. Hughes v. Ohio Bur. of Motor Vehicles (1997), 79 Ohio St.3d 305, 307, 681 N.E.2d 430. A statute will not be treated as void unless it is impossible, by any reasonable construction, to interpret it in harmony with the constitution. See, id. For this reason, "Courts have a duty to liberally construe statutes in order to save them from constitutional infirmities." Id.
R.C. 1533.07 prohibits the catching or killing of an owl unless it is "causing damage to domestic animals or fowl," in which case, the owner of the domestic animals or fowl may kill the owl "while such damage is occurring." The state argues that because this statute provides an exception for the protection of property, it does not fall into conflict with the constitutionally guaranteed right to protect property.
We do not believe that the scenario of subsection B was the intention of the legislature when it included the language "while such damage is occurring" in R.C. 1533.07. If this were the case, we would be forced to find the statute unconstitutional. We will instead find it constitutional by giving the relevant language a liberal construction compatible with the constitution. See Aldrich, supra at ---, 16 Am.Rep. at 341. In order to do so, we find that the phrase "while such damage is occurring" must be interpreted more broadly than the state would contend.
Where the owner of domestic animals or fowl reasonably believes that danger to such property by an owl is reasonably imminent, or where past destruction makes it reasonably necessary to use force to prevent future damage, we find that such situations must fall under the purview of the language "while such damage is occurring." In those circumstances, the right of property owners to protect their property must be respected. See Aldrich, supra at ---, 16 Am .Rep. at 346; Burk, supra at 377, 195 P. at 18-19; Gilbert, supra at 446; Rathbone, supra at ---, 100 P.2d at 95; Masden, supra at ----, 175 S.W.2d 1004, 175 S.W.2d at ----. A review of the authorities cited in subsection D clearly indicates that "reasonable necessity" is the standard of consensus and we adopt it here. See Aldrich supra; Ward, supra at ---, 152 N.W. at 502; Burk, supra at 376, 195 P. at 18; Gilbert, supra at 447; Rathbone, supra at ---, 100 P.2d at 96; Cotton, supra at 400, 17 So.2d 590, 17 S.2d at 591; Cross, supra at 377. Therefore, while we do not find R.C. 1533.07 unconstitutional, to the extent that it was narrowly applied to Troyer in the lower court, we sustain his second assignment of error. This brings us directly to consideration of his first assignment of error.
I. THE TRIAL COURT ERRED IN THE GIVING OF THE JURY INSTRUCTIONS BY AMPLIFYING THE STATUTORY LANGUAGE OF REVISED CODE SECTION 1533.07 TO INCLUDE A MENTION OF ANTICIPATORY ACTIONS TAKEN BY APPELLANT WHICH WERE NOT INCLUDED IN THE STRICT STATUTORY LANGUAGE.
Prior to deliberation, the lower court instructed the jury as to the relevant law in this case. In attempting to explain R.C. 1533.07, the judge gave the following instruction:
Now the law provides that an owl may be killed by the owner of domestic animals or fowl but only when it is actually causing damage to the animals or fowl. This is the affirmative defense claimed by the defendant. The defendant is not permitted to catch or kill a great horned owl in anticipation or expectation of it causing damage to his domestic animals or fowl.
Troyer expressed an objection to this instruction in the lower court but was overruled. He now argues on appeal that it was error for the lower court to go beyond the language of R.C. 1533.07 by stating that the statute did not allow an owl to be killed "in anticipation or expectation" of damage. He claims that this unfairly prejudiced the jury because it evidenced the judge's belief that the owl was not in the process of committing damage when it alighted on the pole trap, contrary to Troyer's affirmative defense.
In light of our disposition of Troyer's second assignment of error, it is not necessary for us to engage in a discussion here about when it is and is not appropriate for a judge to attempt to clarify a statute using extraneous language. Because we have determined that the constitutionality of R.C. 1533.07 is dependant upon a liberal construction of the language relevant here, we find that the instruction given the jury requiring a strict, narrow interpretation was in error. For this reason, we reverse the decision and remand to the trial court.
We note on remand that the fact that a defendant has caught or killed an owl, or the fact that he has attempted to do so, does constitute prima facie evidence that R.C. 1533.07 has been violated. The burden must then shift to the defendant to demonstrate reasonable necessity. See People v. Buffalo Fish Co. (1900), 164 N.Y. 93, 99, 58 N.E. 34, 36. It is a question for the jury to answer whether the catching or killing was reasonably necessary under the circumstances of each particular case. Aldrich, supra at ---, 16 Am.Rep. at 371; Burk, supra at 379, 195 P. at 19; Rathbone, supra at ---, 100 P.2d at 92. Again, each case must be decided on its own facts. The Montana Supreme Court, in Rathbone, supra at ---, 100 P.2d at 93, set forth a three-part test to determine whether a defendant's actions were reasonably necessary under the circumstances. This test has been adopted by the Wyoming Supreme Court, Cross, supra at 378, and an Alabama Appellate Court, Cotton, supra at 400, 17 So.2d 590, 17 S.2d at 591. We believe the test strikes an appropriate balance between an individual's constitutional right to protect property and the state's police power to regulate for the protection of wildlife, and we reiterate and adopt that test here, with some clarifications.
Reasonable necessity requires a defendant to: 1) exhaust all other remedies provided by law, provided such remedies are reasonably available and reasonably effective in protecting the defendant's property, 2) use only such quantity, quality, and timing of force as is necessary to protect the property, and 3) use only such force and means that a reasonably prudent person would use under the circumstances, weighing both the consequences of using it and not using it in light of the severity of damage sought to be avoided. With regard to this last factor, "The injury and damage must be of considerable extent, not just fanciful or trivial." See State v. Mohler (1932), 44 Ohio App. 52, 55, 184 N.E. 298. We would also add that in order to appropriately evaluate factors two and three, the jury must be allowed to consider recent, past depredations as evidence of reasonable necessity where such experiences may cause a justified apprehension of imminent, future damage.
We again clarify that the great horned owl is not an endangered species. Testimony indicated that these creatures are widely abundant in Ohio. We have not had cause, then, to fully consider the ramifications of applying this test to a situation where the animal causing damage is endangered. While we believe the endangered status of a species would weigh heavily against a defendant under the aforementioned test, we do not here apply it to that situation or adopt it for that purpose.
In conclusion, although R.C. 1533.07 properly prevents owls from being killed needlessly, carelessly, or for sport, it cannot compel an individual to helplessly suffer his property, particularly his livelihood, to be eaten up night after night. Such would nullify the clear guarantee of Ohio's constitution. For this reason, we find that the statute must be interpreted broadly, allowing a property owner to use such force as is reasonably necessary, when reasonably necessary, to protect property from marauding owls. Accordingly, we find that the language posed to the jury by the lower court in clarification of R.C. 1533.07 improperly and unconstitutionally limited the scope of the statute. We reverse the decision of the lower court and remand the cause to be reconsidered in light of our determination here.
Judgment reversed and cause remanded.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this court, directing the County of Wayne, Wayne Municipal Court to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E).
Costs taxed to appellee.
DICKINSON, P. J., concurs.
BAIRD, J. Dissents, Saying:
At the close of the state's case, Troyer's counsel moved for an acquittal. At the end of his oral argument on that motion, he added: Okay, but I'd like to add to my motion the constitutionality of the case on the basis of (inaudible) now in the statute on the basis of the cases that I presented to the court.
Based on Crim.R. 12, the trial court concluded that the matter was not timely raised, and that it had been waived. I believe that that ruling was proper and that this court can and should decline to rule on the constitutional question for the reason that it was not timely raised in the trial court.
As recognized by the majority, the extent to which wildlife is to be protected is a matter to be decided by the legislature. The legislative decision that has been made here is that these owls are to be protected at all times except while they are in the act of causing damage to domestic animals or fowl.
The majority suggests that this legislative decision cannot be sustained, and proceeds to substitute therefor a decision of its own. I believe that such a process involves an inappropriate venture by the courts into the realm properly occupied by another branch of the government. As has so often been observed, those members of the judiciary desiring to write laws ought to run for the legislature.
If this law, as written, is unconstitutional, the courts ought to strike it down for that reason. A subsequent decision as to whether, or how, the legislation will be rewritten is a matter for the legislature.
In this case, the defendant's testimony as to the extent of the damage is extremely vague, and it seems abundantly clear that other alternative courses of protective action are available to Troyer. I believe that the law, as enacted by the legislature, is constitutional.
Ohio App. 9 Dist.,1997.