State v. Harriman

Danforth, J.

Demurrer to an indictment found under R.. S., c. 127, § 1, which provides for killing or wounding " domestic animals.” The indictment alleges the killing a dog. Therefore the question involved is, not whether any particular dog or any number of dogs have become so domesticated as to be called, domestic animals, but whether as a class they may properly be-so called in distinction from that class known in law as ferae• naturae. If the dog belongs to the latter class the indictment must foil for the statute does not cover that class. A distinction has been recognized in the law between the two classes from the-origin of the common law, from the earliest date of authentic history, when the wealth of individuals was reckoned by the number of their flocks and herds.

That by the common law the dog belongs to the wild class of animals is recognized by all the authorities, and in that state he "was and is utterly worthless, bis flesh even being unfit for food, ;so that legally he was said to hav.e no intrinsic value and "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 stealing them amounts-to larceny.” 4 Bl. Com. 236 ; :2 Bishop’s Crim. Law, § 773. It is true that dogs have extensively become domesticated, so that it is usual and perhaps not •-an improper use of language to call thém " domestic animals,” ■but as they still retain in a great measure their natural propensities, they may more properly be called domestic animals with vicious habits. They still keep their wild characteristics which ¡ally them to the class of animals feraz naturae, so much so, that in their domestic state they furnish no support to the family, add nothing in a legal sense to the wealth of the community, .are not inventoried as property of a debtor or dead man’s estate, or as ¡liable to taxation unless under a special provision of the statute; but when kept it is for pleasure, or if any usefulness is obtained -from them it is founded upon this very ferocity natural to them by which they are made to serve as a watch or for hunting.

From his greater attachment to his master in the domestic ••state, from which arises a well founded expectation of his return when lost, the law gives the owner the right of reclamation, but iin all other respects the owner has only that qualified property in him which he may have in wild animals generally.

These continuing instincts, from which arises the danger that .he may at any time relapse into his savage state, have made it necessary in all states to have a code of laws peculiarly applicable to the dog and not applicable to domestic animals; not for the protection of his life, but rather for the protection •of the community from his ferocity. Smith v. Forehand, 100 Mass. 140; 20 Albany Law Journal, 6. Under these laws the dog is recognized as property so far as to afford a civil remedy for an injury but seldom if ever any other.' In many cases it is made lawful for a man to kill the dog of another, as when he becomes a public nuisance. 1 Bishop, Crim. Law, § 1080, and note; and in various other instances as provided in our «own state. B. S., c. 30.

Thus it will be perceived that originally the dog belonged to the class of animals feres, natures, and that up to the present time the law has treated him as continuing in that class and has never recognized him as belonging to the domestic class. The two statutes, c. 30, R. S., and c. 127, the first relating to dogs and the latter to domestic animals are so different that they cannot be reconciled. If a person is liable to be convicted for killing a dog under c. 127, he may be punished for what he has a legal right to do under c. 30.

But as dogs have never been recognized in the law as belonging to the class denominated " domestic animals,” and as domestic animals alone are mentioned, it would be contrary to all rules of construction to extend the meaning of a statute so highly penal beyond its exact terms.

Exceptions and demurrer sustained.

Barrows, Virgin, Peters, Libbey and Symonjds, JJ., concurred.