I dissent. The judgment made and given pursuant to the verdict of the jury should be affirmed. Dogs are predatory animals. They prey upon other animal life for a living when not fed by their masters. Dogs running at large are generally regarded as nuisances. The majority in emphasizing the fact that the dog was not in the act of killing at the time of the second shot, would apply to the defendant the same rules as are applied to a defendant in cases of assault by one human being upon another. The dog was a trespasser caught with the evidence of his killing in his possession in the first instance. His master caught in the same sort of act of trespassing and destroying property would have been liable to severe punishment. Maudlin sentiment for a chicken-killing dog is entitled to but little consideration in a court of law. The institution of trial by jury was established and is maintained for the particular purpose of trying cases such as this and courts can perform their obligations no better than to give recognition to the functions of the triers of the facts.
Rehearing denied May 24, 1946. *Page 618