State v. Bogardus

HaydeN, J.,

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” and “ unnecessarily ” must have a reasonable, not an absolute and literal, meaning attached to them. As it would not be claimed that the angler who catches fish for pastime, and neither sells nor eats them when caught, is within the prohibition of the law, so the marksman who, as an exercise of skill or as a diversion to himself or to others, shoots pigeons, either from a trap or as they fly wild in the woods, does not violate the essential objects of the act. When the prevention of cruelty and suffering is concerned, there is plainly a difference between instantaneous and lingering death. The former is generally, if not always, painless. Yet, in favor of those sports which are considered healthful recreations, and exercises tending to promote strength, bodily agility, and courage, the pain which comes with a lingering death in the lower animals is often disregarded in the customs and laws of humane and highly-civilized peoples. In England an act of Parliament has been passed to restrict vivisection, a practice which has high scientific ends. Yet fox-hunting, which is a cniel pastime, would no doubt be upheld by the common law. It is certainly the policy of every government to encourage those recreations which serve as manly exercises, and yet do not necessarily lead to protracted pain in the lower animals. The efficiency of the services which the citizen is called upon to render to the State, in exigencies, may largely depend on the qualities acquired in manly sports, and from some of the most attractive of these a certain amount of injury to dumb animals seems inseparable.

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 animals ejusdem generis, we are of opinion that in the present case there was no violation of the act, and that the appellant’s instruction to the effect that the evidence was insufficient to sustain the charge should have been given. Accordingly, the judgment will be reversed and the complaint dismissed.

All the judges concur.