#### STATE v. ASHTON SMITH and HENRY O. CAULEY.

(Filed 11 October, 1911.)

1. Cruelty to Animals — Dogs—Property Rights.

A dog is a domestic animal, and not ferce natwxe, and as such is a subject of property, and it is unnecessary to show that he is of a pecuniary value to the owner to maintain an indictment for cruelty forbidden by the statute. Revisal, sec. 3299.

2. Cruelty to Animals — Dogs—Bad Reputation — Killing—Defense of Property.

Upon a trial for the crime of willfully killing a dog, the property of the prosecutor, under the provisions of the Revisal, sec. 3299, proof of the bad reputation of the dog, or that he had been guilty of past depredations, will not justify taking his life, for it is not the dog’s 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; and the statute does not change the common law in its application to this doctrine.

3. Same.

In the actual and necessary defense of property in killing a dog, upon an indictment under Revisal, sec. 3299, it is not necessary to show that the owner knew of his vicious propensities or that there was no other mode of defending the thing assailed.

4. Cruelty to Animals — “Animal”—Interpretation of Statutes.

Revisal, see. 3299, makes it criminal to willfully or cruelly kill or injure any useful animal, employing that word, as appears, merely in the sense of “living animal,” and cruelty is defined in the same section to mean “any act, omission, or neglect, whereby unjustifiable physical pain, suffering, or death is caused or permitted.”

5. Cruelty to Animals — Unlawful Killing — Evidence—Instructions— Harmless Error.

A charge to the jury, on a trial of an indictment, under Re-visal, sec. 3299, for the willful killing of the prosecutor’s dog, that if the dog was actually killing the prosecutor’s turkeys at the time it would be no defense or justification, is harmless error, the charge being otherwise correct and there being ample evidence for conviction, and no evidence that the danger to the turkeys was imminent or such as called for immediate action.

Appeal by defendants from Peebles, J., at May Criminal Term, 1911, of LeNOIe.

*629Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Walker.

Attorney-General Bichetb and Assistant Attorney-General G. L. Jones for the State.

Rouse & Land for defendants.

Waleier, J.

Tbe defendants were indicted in tbe court below for tbe crime of willfully killing a dog, tbe property of tbe prosecutor. It would be vain and unprofitable to discuss, for tbe purpose of deciding, tbat a dog is a living creature witbin tbe meaning of Eevisal, sec. 3299, under which tbe indictment was drawn and presented by tbe grand jury. We bave beld tbat be is a subject of property, a domesticated animal, and not merely ferce naturw, and tbat a civil action may be maintained for damages caused by an injury to bim, though be may have been guilty of some “youthful indiscretion” or harmless transgression. A dog is like a man in one respect, at least— tbat is, be will do wrong sometimes; but if the wrong is slight or trivial, be does not thereby forfeit bis life. Tbe opinion of Judge Gaston in Dodson v. Mock, 20 N. C. (Anno. Ed.), 282 (4 Dev. and Bat., 146), has been generally taken as a clear and accurate statement of tbe law in regard to tbe right of property in this much petted and sometimes useful animal. Tbat was' a civil action to recover damages for killing tbe plaintiff’s dog, tbe defendant contending tbat a dog was not property, and, therefore, no action would lie for any injury to bim. In view of this contention, Judge Gaston said: “It was not necessary for tbe maintenance of tbe action tbat tbe plaintiff’s dog should be shown to bave pecuniary value. Dogs belong to tbat class of domiciled animals which tbe law recognizes as objects of property, and whatever it recognizes as property it will protect from invasion by a civil action on tbe part of tbe owners. It is not denied tbat a dog may be of such ferocious disposition or predatory habits as to render bim a nuisance to tbe community, and such a dog, if permitted to go at large, may be destroyed by any person. But it would be monstrous to require exemption from all fault as a condition of existence. Tbat the *630plaintiff’s dog on one occasion stole an egg, and afterwards snapped at tbe beel of the man wlio had hotly pursued him ;flagrante delicto; that on another occasion he barked at the doctor’s horse, and that he was shrewdly suspected in early life to have worried a sheep, make up a catalogue of offenses not very numerous nor of a very heinous character. If such deflections as these from strict propriety be sufficient to give a dog a bad name and kill him, the entire race of these faithful and useful animals might be rightly extirpated.”

It was next held in S. v. Latham, 35 N. C., 33, that the owner has such property in a dog that an indictment for malicious mischief in killing him will lie. These cases were followed by others, deciding different questions, but all recognizing the general rule that a dog is property. Perry v. Phipps, 32 N. C., 259; Mowery v. Salisbury, 82 N. C., 177 (right to tax them). In S. v. Latham, supra, the indictment was for malicious mischief, and the judge, by his charge, let the guilt of the defendant turn altogether upon an affirmative answer to the question whether the defendant, in killing the dog, was acting in defense of his property, without regard to whether or not he did so from malice to the owner. This was held to be error, as the gist of the offense was malice to the owner, and the killing, from passion excited against the dog by the injury or threatened injury to property, was not any defense, provided the defendant was actuated by malice towards the owner. In that case, Judge Nash took occasion to say: “By the old authorities, a dog was not a subject of larceny, because it was without value. But, notwithstanding, it is a species of property, recognized as such by the law, and for an injury to which an action at law will be sustained. Dodson v. Mock, 4 Dev. and B., 148. Many actions have been brought in this State, and in England, for injuries to such property. 8 Bl. Com., 393-4. If, then, dogs be personal property, they are protected by the law, and the owner has such an interest in them as that he can protect and defend them; and the destruction of them, from' malice to the owner, is in law malicious mischief.”

Although counsel did not so contend, we will say that the dog is not an animal of such base nature or low degree, whatever *631bis pedigree may be, as not to be entitled to tbe consideration and full protection of tbe law, or as to subject bim to outlawry if be lias a bad reputation, or at least a babit of killing fowls, so that if be lurks near where tbey are to be found, although tbey are protected by a sufficient fence or other barrier against bis predatory and ferocious disposition, be may be killed, even if be is not engaged in tbe actual attempt 1o slay and devour bis supposed prey, or tbe danger of bis doing so is not so imminent or immediately threatening that a prudent and reasonable man would be led to believe that bis property is in jeopardy. We cannot give our assent to this principle. Admit such a right, and tbe peace and good order of society would be ■ seriously endangered and could not well be preserved, for tbe exercise of such a right would excite tbe most angry passions and resentment of tbe dog’s owner and eventually result in personal violence, thus disrupting tbe peace and quiet of tbe community. So thought Judge Pearson in Morse v. Nixon, 51 N. C., 293. But we think that the dog is not an animal of such low origin and of such a base nature as to be beyond tbe pale of tbe law. Tbe right to slay bim cannot be justified merely by tbe baseness of bis nature, but it is founded upon tbe natural right to protect person or property. He has tbe good-will of mankind because of bis friendship and loyalty, which are such marked traits of bis character that tbey have been touchingly portrayed both in song and story. Why, then, should be be declared an outlaw and a nuisance, and forfeit bis life without any sufficient cause? This was never tbe law. Neither at tbe common law nor since tbe passage of our present statute prohibiting cruelty to animals can a dog be killed for tbe commission of any slight or trivial offense (S. v. Neal, 120 N. C., 614); nor to redress past grievances (Morse v. Nixon, supra). As said by Chief Justice Pearson in tbe last cited case: “It may be the billing will be justified by proving that tbe danger was imminent — making it necessary 'then and there’’ to kill tbe bog in order to save tbe life of tbe chicken, or prevent great bodily barm.” It was well said by tbe Chief Justice in that case, that in order to recover damages in a civil action *632for injuries to property committed by a bog (or dog), tbe plaintiff must prove, as we say, a scienter, tbat is, knowledge of bis vicious propensities, as in tbe case of tbe deer in tbe Saratoga Park (99 U. S., 645), where it was beld: “Certain animals force naturae may doubtless be domesticated to sucb an extent as to be classed, in respect to tbe liability of tbe owner for injuries tbey commit, witb tbe class known as tame or domestic animals; but inasmuch as tbey are liable to relapse into their wild habits and to become mischievous, tbe rule is tbat if tbey do so, and tbe owner becomes notified of their vicious habit, tbey are included in tbe same rule as if tbey bad never been domesticated, tbe gist of tbe action in sucb a case, as in tbe case of untamed wild animals, being not merely tbe negligent keeping of tbe animal, but tbe keeping of tbe same witb knowledge of tbe vicious and mischievous propensity of tbe animal. 'Wharton Negligence, sec. 922; Decker v. Cammon, 44 Me., 322. Three or more classes of cases exist in which it is beld ’that tbe owners of animals are liable for injuries done by tbe same to tbe persons or property of others, tbe required allegations and proofs varying in each case. 2 331. Com., per Cooley, 390. Owners of wild beasts, or beasts tbat are in their nature vicious, are liable under all or most all circumstances for injuries done by them; and in actions for injuries by sucb beasts it is not necessary to allege tbat tbe owner knew them to be mischievous, for be is presumed to have sucb knowledge, from which it follows tbat be is guilty of negligence in permitting tbe same to be at large. Though tbe owner have no particular notice tbat tbe animal ever did any sucb mischief before, yet if tbe animal be of tbe class tbat is ferae natures, tbe owner is liable to an action of damage if it get loose and do barm. 1 Hale P. C., 430; Worth v. Gilling, Law Rep., 2 C. P., 3. Owners are liable for tbe hurt done by tbe animal even without notice of tbe propensity, if tbe animal is naturally mischievous; but if it is of a tame nature, there must be notice of tbe vicious habit. Mason v. Keeling, 12 Mod. Rep., 332; Rex v. Huggins, 2 Ld. Raym., 1574. Damage may be done by a domestic animal kept for use or convenience, but tbe rule is tbat tbe owner is not *633liable to an action on tbe ground of negligence, without proof that be knew tbat tbe animal was accustomed to do mischief. Vrooman v. Sawyer, 13 Johns. (N. Y.), 339; Buxendin v. Sharp, 2 Salk., 662; Cockerham v. Nixon, 11 Ired. (N. C.) L., 269. Domestic animals, such as oxen or horses, may injure the person or property of another, but courts of justice invariably hold that if they are rightfully in the place where the injury is inflicted, the owner of the animal is not liable for such an injury, unless he knew that the animal was accustomed to be vicious; and in suits for such injuries such knowledge must be alleged and proved, as the cause of action arises from the keeping of the animal after the knowledge of its vicious propensity. Jackson v. Smithson, 15 Mee. and W., 563; Van Leuven v. Lyke, 1 N. Y., 515; Card v. Case, 5 C. B., 632; Hudson v. Roberts, 6 Exch., 697; Dearth v. Barber, 22 Wis., 73; Cox v. Burbridge, 13 C. B., N. S., 430.”

It would, therefore, be strange if a person is privileged to take the law into his own hands and redress supposed and past grievances by an extrajudicial method or remedy, under circumstances which may not entitle him to sue for and recover damages in a civil action. Such a view of the law was adopted in Dodson v. Mock, 20 N. C., 282 (4 Dev. and Bat., 146), but it has been said of that case by the Court in Morse v. Nixon, supra (opinion by Chief Justice Pearson), that Judge Gaston fell into error in his dictum that a dog may, by reason of his predatory habits, become a public nuisance, so that any person may kill him in order to abate the nuisance, although not specially injured or aggrieved. We think the law of this State is correctly stated by Judge Gaston (as far as he went) in Parrott v. Hartsfield, 20 N. C., 242 (Anno. Ed.), or 4 Dev. and Bat., 110, as follows: “The law authorizes the act of killing a dog found on a man’s premises in the act of attempting to destroy his sheep, calves, conies in a warren, deer in a park, or other reclaimed animals used for human food and unable to defend themselves. Barrington v. Sumers, 3 Lev., 28; Leonard v. Wilkins, 9 John., 233.” In the actual and necessary defense of property, it is not necessary to show that the owner of the dog *634knew of his vicious propensities, or that there was no other' mode of defending the things assailed. Com. Dig. Pleader, 3 m. 33.1, sec. 336. “The law is different where the dog is chasing animals ferw natura:, such as hares or deer in a wild state, or combating with another dog. In these eases a necessity for the act of killing must bfe made out, or the killing will not be justified. Wright v. Ramscot, 1 Saun., 82; Vere v. Ld. Cawdor, 11 East, 567. The object of the law in conferring this authority is' not to punish past wrongs, but to prevent wrongs impending or menaced. It .may, therefore, be exercised before the injury is begun, if, in truth, it be imminent — for otherwise the preventive remedy may be too late.” Parrott v. Hartsfield, supra. This Court (by Chief Justice Pearson) in Morse v. Nixon, approved the rule as stated thus by Judge Gaston. It is true that Judge Pearson added this qualification, or expressed this doubt: “But we are inclined to the opinion that even under these circumstances it is not justifiable to kill the dog. It should be impounded or driven away, and notice given to the owner, so that he may put it up. At all events, this course is dictated by the moral duty of good neighborship.” But we conclude that the better doctrine is the first one stated by the learned Chief Justice and the one fully sustained by the opinion of the Court in Parrott v. Hartsfield, supra. If the danger to the animal, whose injury or destruction is threatened, be imminent or his safety presently menaced, in the sense that a man of ordinary prudence would be reasonably led to believe that it is necessary for him to kill in order to protect his property, and to act at once, he may defend it, even unto the death of the dog, or other animal; which is about to attack it. We understand this to be the law as declared in a veiy brief opinion of the Court (by Rodman, J.) in Williams v. Dixon, 65 N. C., 416, citing and .approving what is said to that effect in Parrott v. Hartsfield and Morse v. Nixon. It is taken for granted in Runyan v. Patterson, 87 N. C., 343, that if a hog or dog is caught in flagrante delicto or “red-handed,” that is, while in the act of injuring property, such as turkeys or chickens, he may be shot on the spot by their owner. *635citing the above cases. Why not if he is about to spring upon his prey and when the necessity of protecting his property reasonably appears to its owner to be just as imperative? Our statute, Revisal, see. 3299, makes it criminal to willfully or cruelly kill or injure any useful animal, employing that word in the sense of any “living creature,” and “cruelty” is defined in the same section to mean “any act, omission, or neglect whereby unjustifiable physical pain, suffering, or death is caused or permitted.” ,

So far as this ease is' concerned, and the point raised by the defendant, we do not think the statute has materially changed the law as formerly declared. The defendant is guilty at common law, and surely under the statute, if he unjustifiably killed the dog; and what is an unwarranted or unjustifiable killing has already been fully stated.

Upon the facts of this case, we are of the opinion, and so decide, that the defendants were guilty, and that while the. judge erred when he charged that if the dog was actually killing'the turkeys it would be no defense or justification for the killing, this error was harmless, as there was no evidence that the danger to the turkeys was imminent and the necessity to kill was apparent. The fact that the dog had visited the premises before, if it had been proven, would not justify the defendant’s act in slaying him. It is not the dog’s 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. The dog was not in a position, with reference to the turkeys, to make the danger to them imminent, he being in the road or street outside the defendant’s yard, with an impassable fence and closed gate between him and them. He could easily have been driven away without resorting to extreme punishment, for it was nothing but punishment inflicted upon him for his supposed past transgressions, that is, resentment and retaliation. It was an act unlawful at common law and willful within the meaning of the statute, even as construed in S. v. Clifton, 152 N. C., 802.

No error.