People v. Olary

T. Gr. Kavanagh, J.

(dissenting). This is not a pleasant case. Several of his cows were cruelly injured and died, and the 66-year-old defendant’s bizarre explanation that gangsters in the employ of his divorced wife inflicted the injuries is incredible.

It would be more comfortable to affirm this misdemeanor conviction and righteously approve the $75 cost exaction and the 75-day sentence.

But the point of law raised by this appeal is more important than our sensibilities.

At the close of the people’s case the defense moved for dismissal of the charges on the ground that the record contained no evidence of the defendant’s treatment of the cows and hence no proof of cruelty.

The trial court ruled that since the defendant was the owner of the cows and since the injuries to the cows were evident to the naked eye and the defendant must have seen this condition, it was a reasonable inference that he was responsible for not calling *569a doctor for the injured cows. The court then ruled that it was “inflicting unnecessary cruelty when you see a cow obviously suffering from open wounds and don’t either put her out of her misery or call the doctor to do so or attempt to treat her” and denied the motion.

A majority of the Court of Appeals panel held the trial judge thereby committed no error. (10 Mich App 640, 643.) We do not agree.

We think the dissent of Judge Levin1 adequately and correctly’ states the law. We adopt it' as our own. The quoted statute2 does not impose a duty on the owner or custodian of animals to provide medical attention for them under pain of conviction for cruelty.

We would hold that the trial court should have dismissed the charges at the close of the people’s case.

In view of our holding on this question we would deem it unnecessary to consider the other question, raised by the appellant.

We would set aside the conviction and order defendant discharged.

T. M. Kavanagh, J., concurred with T. Gr. Kava-nagh, J.

10 Mich App 640, 644-650.

CL 1948, § 752.21 (Stat Ann 1962 Rev § 28.161).