delivered tbe opinion of tbe court.
The complainant in this case charges that the defendant “ did unmercifully kill certain living creatures by shooting them with a shot-gun, for the purpose of displaying his skill as a marksman, to wit, twenty-five pigeons, contrary to the form of the statute,” etc. The defendant was arrested and held to bail on the charge, tried, convicted, and fined $50, and has appealed to this court.
The question in the case involves the construction of the act to be found in the Session Acts of 1874, page 112, entitled, “An act for the prevention of cruelty to animals.” It is claimed that an offence was committed under that part of section 1 which provides that “ if any person shall needlessly kill any living creature, every such offence shall,” etc. The evidence tended to show that at the Abbey Racetrack a man threw up pigeons, two at a time, and that the defendant, in the presence of a number of persons, shot the pigeons in the air, with a gun, to show his skill; that the birds dropped dead when shot; that they were furnished by the owners to be shot at; that pigeons like these are eaten as food, and bought and sold for that purpose; that they were so eaten when shot.
The object of the act is to prevent unnecessary suffering to animals. Human beings are not included under this expression, but with this exception the act, in its terms, is broad enough to cover all creatures. It is not so material, however, to enquire how low in the order of creation the subjects of this act extend, as it is to ask what is needless mutilation or killing, within the meaning of the act. All needs are comparative. The flesh of animals is not necessary for the subsistence of man, at least in this country, and by some people it is not so used. Yet it would not be denied that the killing of oxen for food is lawful. Fish are not necessary to any one, nor are various wild animals which are killed, and sold in market; yet their capture and killing are regulated by law. The words “needlessly”
In the present case there was no mutilation, or any thing approaching to it. The birds were killed in a more humane way than by wringing their necks, which is an ordinary method of destroying life in pigeons, when they are killed merely with a view to their being eaten. Though we think that the 1st section of the act can not properly receive the construction placed upon it by the appellant, by which its operation would be confined to beasts of burden and ani