{
  "id": 8553434,
  "name": "STATE OF NORTH CAROLINA v. CHARLES SIMMONS",
  "name_abbreviation": "State v. Simmons",
  "decision_date": "1978-05-16",
  "docket_number": "No. 7713SC926",
  "first_page": "354",
  "last_page": "357",
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    "name": "N.C."
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      "cite": "72 S.E. 321",
      "category": "reporters:state_regional",
      "reporter": "S.E.",
      "year": 1911,
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    {
      "cite": "156 N.C. 628",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "year": 1911,
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      "cite": "35 N.C. 33",
      "category": "reporters:state",
      "reporter": "N.C.",
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        11273862
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      "year": 1851,
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        "/nc/35/0033-01"
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  "last_updated": "2023-07-14T17:02:41.791978+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Martin and Arnold concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. CHARLES SIMMONS"
    ],
    "opinions": [
      {
        "text": "\u2022MORRIS, Judge.\nThe statute under which defendant was charged is G.S. 14-360 which provides, in pertinent part:\n\u201cIf any person shall willfully . . . kill . . . , any useful beast, fowl or animal, every such offender shall for every such offense be guilty of a misdemeanor punishable by a fine not to exceed five hundred dollars ($500.00), imprisonment for not more than six months, or both. . . .\u201d\nThe killing of a dog, the property of another, without justification, has long been a criminal offense in this State. See State v. Latham, 35 N.C. 33 (1851). In State v. Smith, 156 N.C. 628, 72 S.E. 321 (1911), the Court had before it on appeal a conviction for willfully killing a dog, the property of the prosecutor. The statute was substantially the same. The Court said: \u201cIt would be vain and unprofitable to discuss, for the purpose of deciding, that a dog is a living creature within the meaning of Revisal, sec. 3299 (now G.S. 14-360) under which the indictment was drawn and presented to the grand jury.\u201d Id. at 629. The Court discussed cases decided prior to the statute which had recognized that a dog is property and said:\n\u201cThe right to slay him cannot be justified merely by the baseness of his nature, but it is founded upon the natural right to protect person or property. He has the good-will of mankind because of his friendship and loyalty, which are such marked traits of his character that they have been touchingly portrayed both in song and story. Why, then, should he be declared an outlaw and a nuisance, and forfeit his life without any sufficient cause? This was never the law. Neither at the common law nor since the passage of our present statute prohibiting cruelty to animals can a dog be killed for the commission of any slight or trival [sic] offense (S. v. Neal, 120 N.C., 614); nor to redress past grievances (Morse v. Nixon, supra [51 N.C., 293]). As said by Chief Justice Pearson in the last cited case: \u2018It may be the killing will be justified by proving that the danger was imminent \u2014 making it necessary \u201cthen and there\u201d to kill the hog in order to save the life of the chicken, or prevent great bodily harm.\u2019 \u201d Id. at 631.\nAnd the Court concluded:\n\u201cIt is not the dog\u2019s predatory habits, nor his past transgressions, nor his reputation, however bad, but the doctrine of self-defense, whether of person or property, that gives the right to kill.\u201d Id. at 635.\nWhen these principles are applied to the case before us, it becomes necessary to determine from the evidence whether the issue of self-defense should have been presented to the jury.\nThere is no dispute about the fact that the prosecuting witness and defendant\u2019s brother were having a dispute over some land and, on the day in question, the two were fighting at a point on the land in dispute. Defendant, according to his testimony, was asked to go \u201cdown there\u201d by his sister-in-law, wife of the person who was fighting with the prosecuting witness at the time of the shooting. The State\u2019s evidence was that when he saw defendant, he, the prosecuting witness was on the ground, and defendant\u2019s brother was beating and kicking him. Defendant exited from a vehicle carrying a \u201clong-type\u201d firearm and was running in the direction of the fight. Defendant stopped and pointed the firearm in the direction of prosecuting witness. His brother then stopped the beating and hollered to defendant to \u201ckill them dogs\u201d. Defendant was then \u201csome 50 yards plus\u201d from where prosecuting witness was. Defendant called the dogs, and they started toward him. When they got some distance from him, they turned and started circling away from him, and as they turned, defendant shot and killed the dog named Silver. The dog got no closer to defendant than 40 yards.\nDefendant testified that when he got to the point where he could see around the hedgerow, he saw two men in the northeast corner of the field. One was on his knees and appeared to have his hands on the ground. The other one \u201cseemed to have his hand up on his head and his right arm holding it up in the air.\u201d He never, on that day, got any closer to that corner of the field than approximately 150 yards. He did not shoot the dog. \u201cThere is a difference in shooting and shooting at. I shot to turn the dogs off of me. I said I shot to turn the dogs off of me.\u201d At that time he was from 200 to 250 yards from the two men. The dogs were coming up beside the hedgerow from down in the southeast corner of the field. There were two \u201cbig old\u201d dogs. He had never seen them before and did not know whose they were. He shot four times. \u201cAs to whether those dogs got anywhere near me, they were just about like from here to that deputy sheriff standing over there and were coming right at me. That was as close as they got to me because I shot at them. I did not shoot right at them. I shot in front of them in the ground.\u201d\nThe court had placed in the record the following statement:\n\u201cIn the instructions to the jury the court is not going to charge on the defendant\u2019s right to kill a dog in protecting himself, there being no evidence that the defendant was under attack, but rather, the only evidence is that the dogs were proceeding in his direction.\u201d\nWe agree with the court. There is no evidence in the record that the dogs, or either of them, were attacking defendant or even threatening to attack, or doing anything which would make a reasonable person think they were about to attack. Nor does defendant testify that he thought they were going to attack. There is absolutely no evidence that the dogs were ferocious or vicious or that either of them had ever caused any trouble whatever. The only evidence with respect to the nature of the dog which was killed was that he was gentle and had never bitten anyone. There is no evidence that the defendant thought the dog was vicious. He said he had never seen the dogs before and did not know to whom they belonged.\nThe court instructed the jury that the State would have to prove, beyond a reasonable doubt, that the defendant shot a dog belonging to the prosecuting witness; that, in so doing, the defendant acted willfully and needlessly; that \u201cthe shot, if any, proximately caused the dog\u2019s death\u201d; and the jury would have to find all these elements before they could find the defendant guilty. Under the evidence in this case, defendant was not entitled to more.\nNo error.\nJudges Martin and Arnold concur.",
        "type": "majority",
        "author": "\u2022MORRIS, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Assistant Attorney General Archie W. Anders, for the State.",
      "Ray H. Walton for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. CHARLES SIMMONS\nNo. 7713SC926\n(Filed 16 May 1978)\n1. Animals \u00a7 7\u2014 killing dog \u2014 criminal offense\nThe killing of a dog, the property of another, without justification has long been a criminal offense in this State. G.S. 14-360.\n2. Animals \u00a7 7\u2014 killing of dog \u2014 no evidence of self-defense \u2014 failure to instruct \u2014 no error\nIn a prosecution of defendant for killing a dog, the property of another, the trial court did not err in failing to instruct the jury with respect to self-defense where there was no evidence that the dogs were attacking defendant or even threatening to attack or doing anything which would make a reasonable person think they were about to attack; there was no evidence that the dogs were ferocious or vicious or that either of them had ever caused any trouble whatever; and there was no evidence that defendant thought the dog was vicious.\nAPPEAL by defendant from Smith, Donald L., Judge. Judgment entered 24 August 1977, Superior Court, COLUMBUS County. Heard in the Court of Appeals 7 March 1978.\nDefendant was tried in District Court under a warrant charging that he \u201cunlawfully, willfully, and wantonly did cruelly overdrive, mutilate and kill a dog, the property of Tylon V. Mills\u201d. He was convicted in District Court and appealed to Superior Court. There he was convicted by the jury and appeals from the judgment entered on the verdict.\nHis only argument on appeal is that the court failed to instruct the jury with respect to self-defense. Such facts as are necessary for decision are set out in the opinion.\nAttorney General Edmisten, by Assistant Attorney General Archie W. Anders, for the State.\nRay H. Walton for defendant appellant."
  },
  "file_name": "0354-01",
  "first_page_order": 382,
  "last_page_order": 385
}