The Defendant was convicted in the District Court of Hennepin county for the unlawfully malice killing of a dog. The Defendant appealed the descision to the Supreme Court of Minnesota to determine whether a dog has value and thus would be cover by the Minnesota cruelty to animal statute. The Supreme Court of Minnesota found that a dog has no value and would not be covered by the statute.
Points and authorities for defendant:
1. That the court erred in overruling the demurrer of the defendant to the indictment, because the said indictment does not substantially conform to the requirements of §§ 65, 66, 67, 68, and 69, of ch. 119 of the Rev. Stats. of Minnesota. Rev. Stats. ch. 119, p. 542; State v. Wilcox, 3 Yerg. R. 278; State v. Jackson, 12 Ired. R. 329; 13 Ired. R. 33. Because, the facts stated in the indictment do not constitute a public offense. Rev. Stats. 505; 3 Leigh, R. 809; 4 Leigh, R. 686; 12 Modern R. 336-7; 3 McCord, R. 442; 1 Bail. R. 144; W. Am. Cr. Law (1st ed.), 91, and cases there cited; State v. M'Lain, 2 Brev. R. 443; W. Am. Cr. Law (1st ed.), 94, and cases there cited. Because the indictment is uncertain, as it does not show whether the dog, which is alleged to have been killed, was killed with a gun or pistol. Rev. Stats. pp. 542 to 548. Because the indictment states no value in the dog alleged to have been killed. Whart. Cr. Law, (1st ed.), p. 90; Arch. Cr. Pl. (4th Am. ed.), 326-7.
2. The court erred in disallowing and overruling the challenge to the panel of petit or trial jurors. Rev. Stats. 556; id. 559, §§ 172, 173, 174, and 175; id. pp. 535, 536.
3. The court erred in refusing to charge the jury, that the facts stated in the indictment do not constitute a public offense. Rev. Stats. 508; 3 Leigh, R. 809; 4 Leigh, R. 686.
4. The court erred in instructing the jury that the killing by one person of a dog of another person, willfully and maliciously, is a public offense indictable under, and by virtue of, the provisions of § 39 of ch. 101, of the Rev. Stats. entitled "Of Offenses against Property." Rev. Stats. p. 505; see authorities above cited.
5. The court erred in refusing to charge the jury "that before they, the jury, could find the defendant guilty under the indictment, they must have before them evidence of express malice in the mind of the defendant against the claimant or owner of the dog alleged to have been killed." State v. Wilcox, 3 Yerg. R. 278, and cases above cited; 2 Dev. R. 420; Russell on Crimes, (3d Am. ed.), 421, 425, and 438.
6. The court erred in instructing the jury, "that it was not necessary to constitute the offense, or to the conviction of the defendant thereof, that the value of the dog should be alleged in the indictment, or proven on the trial; and that there is property in a dog sufficient to sustain an indictment against a person who maliciously kills the dog of another." 12 Modern R. 336, and authorities above cited.
Sherburne, J. This was an indictment for shooting a dog, and the charge is in the following words: "Peter M. Gideon is accused by the grand jury of the county of Hennepin, by this indictment, of the crime of willfully and maliciously killing a dog belonging to George M. Bertram, committed as follows, to-wit: The said Peter M. Gideon did, on the 24th day of July, A. D. 1854, in the county aforesaid, willfully and maliciously kill a dog belonging to George M. Bertram, by shooting said dog with a gun or pistol, to-wit: in the county of Hennepin aforesaid" -- dated, etc. To this indictment a demurrer was interposed, and the following are among the causes of demurrer assigned, to-wit: "The facts stated in the indictment to not constitute a public offense," and "the indictment states no value in the dog alleged to have been killed." The demurrer was overruled, and the cause went to trial. The defendant, by his counsel, requested the court to charge the jury: First , that the facts stated in the indictment do not constitute a public offense. The court refused so to charge, and instructed the jury in substance, that the facts stated did constitute an indictable offense, by virtue of the provisions of § 39, ch. 101, of the Rev. Stats. Second , "that before the jury could find the defendant guilty under the indictment, they must have before them evidence of express malice in the mind of the defendant against the claimant or owner of the dog alleged to have been killed."
Under the second request, the court charged the jury, among other things, that "they must be satisfied or convinced by the evidence in the case, that the defendant was prompted or induced to kill the dog by actual malice, either towards the owner of the dog, or towards the dog itself." Also, in substance, that it was not necessary to the conviction of the defendant that the value of the dog should be alleged in the indictment, or proved upon trial, and that there is property in a dog sufficient to sustain an indictment against the person who maliciously kills the dog of another.
To all of which charges and rulings the defendant, by his counsel, excepted. Verdict was against the defendant. The case comes into this court on the report of the presiding judge.
Upon this statement of the case, three questions arise. First , is this an indictable offense? Second , was it necessary to allege and prove value in the dog? Third , was it sufficient to sustain the indictment, to prove malice against the dog only? The indictment is founded upon § 39 of ch. 101 of the Rev. Stats. It provides, that "every person who shall willfully and maliciously kill, maim or disfigure any horses, cattle, or other beasts of another person," etc., "shall be punished," etc.
It may be difficult to determine in all respects what animals the term "beasts," as used in the statute, includes; but it may be fairly assumed, as it seems to me, that all such as have, in law, no value, were not intended to be included in that general term. Horses and cattle have an intrinsic value which their names import, and it is but reasonable to suppose that the intention of the law was, in using the term "beasts," to include such other animals as may properly come under the name of beasts, and as have an intrinsic value in the same sense that there is value in horses, oxen and cows. The term beasts may well be intended to include asses, mules, sheep, swine, and, perhaps, some other domesticated animals, but it would be going quite too far to hold that dogs were intended. A criminal offense should not be created by an uncertain and doubtful construction of a statute. If there be any doubt in the case, penal statutes are to be so construed as not to multiply felonies, unless the construction be supported by express words, or by a reasonable implication. Commonwealth v. Macomber , 3 Mass. 254; Myers v. Foster , 6 Cow.567. My opinion, therefore, is that the shooting a dog is not an indictable offense under the statute referred to.
But if I am wrong in this opinion, there is still the fatal objection left, that no value was alleged or proved. Blackstone, in his 4 Com. 236, says: "As to these animals which do not serve for food, and which the law therefore, holds to have no intrinsic value, as dogs of all sorts, and other creatures kept for whim and pleasure, though a man may have a bare property therein, and maintain a civil action for the loss of them, yet they are not of such estimation as that the crime of stealing them amounts to a larceny." It is equally necessary to sustain this indictment, even admitting that it should be sustained in any event, that the dog killed should have been charged and proved to be of value. It is true that statutes, highly penal, have been enacted in England against persons found guilty of stealing dogs. 10 Geo. III, ch. 18. But their force has not reached this country, and any criminal process here must depend upon our own statutes. The simple word or name of dog, then, not importing value, and no value being alleged or proved, the verdict cannot be sustained.
The last objection I consider equally fatal to the verdict. The jury must have understood the charge of the court to be that they might find the defendant guilty upon the question of malice, if they should find that he had malice, either against the owner of the dog or the dog itself. It is more than probable that this question was never before raised; except under a single English statute, authorizing a conviction without proof of malice, cited in Russell on Crimes, it has always been held necessary to prove malice against the owner. I have not been able to find a single hint in the books, that malice against the animal injured was ever offered in evidence. Russell on Crimes, B. 4, ch. 43.