The indictment charged that the defendant unlawfully and needlessly mutilated a dog by setting a steel-trap in a bucket of slop and catching the dog by the tongue, and that great pain and torture were unlawfully and needlessly inflicted upon the dog. Defendant argued that a dog had been invading his property and destroying hens' nests for a long time. Witnesses testified that the dog had a bad character for prowling about through the neighborhood at night. The court reversed and remanded for a new trial, finding that defendant had a right to protect his premises against such invasions, and to adopt such means as were necessary for that purpose. There was no evidence that the slop used by defendant was such as was calculated or likely to lure dogs away from the premises where they belonged on to his premises or within his enclosures. If the dog was in the habit of committing the depredations, defendant had a right to set a steel-trap for the purpose of capturing him, and if, while committing the nightly depredations the dog was thus caught and mutilated, it was not needless torture or mutilation within the meaning of the Act, and the jury should have been so instructed. The indictment charged that the defendant unlawfully and needlessly mutilated a dog by setting a steel-trap in a bucket of slop and catching the dog by the tongue, and that great pain and torture were unlawfully and needlessly inflicted upon the dog. Defendant argued that a dog had been invading his property and destroying hens' nests for a long time. Witnesses testified that the dog had a bad character for prowling about through the neighborhood at night. The court reversed and remanded for a new trial, finding that defendant had a right to protect his premises against such invasions, and to adopt such means as were necessary for that purpose. There was no evidence that the slop used by defendant was such as was calculated or likely to lure dogs away from the premises where they belonged on to his premises or within his enclosures. If the dog was in the habit of committing the depredations, defendant had a right to set a steel-trap for the purpose of capturing him, and if, while committing the nightly depredations the dog was thus caught and mutilated, it was not needless torture or mutilation within the meaning of the Act, and the jury should have been so instructed. The court reversed defendant's conviction for cruelty to animals and granted a new trial.
COOKE, Sp. J., delivered the opinion of the court.
The plaintiff in error was indicted and convicted under the act of 1881, ch. 169, enacted for the prevention of cruelty to animals.
The first section of said act is as follows: "If any person shall overdrive, overload, torture, torment, deprive of necessary sustenance, or cruelly beat, or needlessly mutilate, or kill, or cause or procure to be overdriven, overloaded, tortured, tormented, or deprived of necessary sustenance, or to be cruelly beaten, or needlessly mutilated or killed, as aforesaid, any living creature, every such offender shall, for every such offense, be guilty of a misdemeanor." And by the [*529] 13th section of said act, the words "torture, torment or cruelty shall be held to include every act, omission or neglect whereby unjustifiable physical pain, suffering or death is caused or permitted, * * but nothing in this act shall be construed as prohibiting the shooting of birds for human food."
The indictment charged in substance that the defendant unlawfully and needlessly mutilated a dog, the property of one Garner, by setting a steel-trap in a bucket of slop, and exposing the same, whereby said dog was caught in said trap by the tongue, which was torn out, and great pain and torture unlawfully and needlessly inflicted upon said animal.
The proof showed that the defendant had been for some time annoyed by a dog, or some other animal, invading his premises at night, and breaking up the nests of his hens, sucking the eggs, disturbing his poultry, etc. That he suspected a dog that belonged to his father as being the depredator, but that he had no suspicions against this dog of the prosecutor, who lived about a quarter of a mile distant from him. That these depredations continuing, he borrowed a steel-trap, and set it in a bucket of slop, placed it in his garden, and tied the trap with a cord to a post of the fence. That he did so expecting to catch the dog belonging to his father. That during the night the prosecutor's dog was caught in the trap by the tongue, which, or a part of it, was torn out, and was found lying by the trap. That the dog is mutilated thereby, and unable to eat without great waste of his food, cannot bark as formerly, is very poor, [*530] and very much injured; and that he was a very valuable dog. So says the prosecutor.
The testimony further showed that this valuable dog was in the habit of running about at night, and invading and depredating upon the premises of persons living in the neighborhood. That he had been repeatedly seen at night around the houses and upon the premises of persons living at the distance of a mile or more from the prosecutor, and that he raised disturbances on their premises by fighting the dogs belonging to them.
He was a large dog, and one witness states that he shot at him or towards him one night for the purpose of scaring him away. Another witness states that upon one night when he saw this dog about his premises, a turkey-hen which he had setting had her nest broken up, and the eggs were gone next morning. The testimony fully showed that this dog had a bad character for prowling about through the neighborhood at night.
His Honor, the trial judge, after instructing the jury that "tearing out the tongue of an animal needlessly, that is, without necessity , or unnecessarily causing it to be done, would amount to such torture and needless mutilation of the animal as are prohibited by the statute," further instructed them that "if a party set a trap or other instrument, though it may be to take some particular dog or other animal, and so bait it as to be likely to lure and draw other dogs or animals into danger of the trap, and some other dog or animal should thereby be lured or drawn, and be [*531] injured by the trap or other instrument, these are circumstances that the jury may look to in connection with all the evidence in the case to determine whether the injury to the animal was needlessly caused or not. We do not think this was a sufficiently full or correct exposition of the law as applicable to the facts disclosed by this record. The testimony showed that the premises of the defendant had been nightly invaded for a considerable length of time, his poultry disturbed, and their nests destroyed by some animal he supposed to be a dog, and that for the purpose of capturing it he set the trap in the manner above stated in his own garden, upon his own premises. There can be no doubt, we think, that in doing so his object was, by catching the animal, to protect his property and relieve his premises from these depredations, and not for the purpose of inflicting needless torture upon the animal. There was no testimony going to show that the slop used by the defendant was such as was calculated or likely to lure dogs or other animals away from the premises where they belonged on to his premises or within his enclosures. That this dog was the animal that had been making these nightly incursions and depredations upon these premises can scarcely admit of a doubt. The defendant had a right to protect his premises against such invasions, and to adopt such means as were necessary for that purpose. And if a night-prowling dog, in the habit of invading premises and breaking up hen's nests, and sucking the eggs, while so transgressing is caught in a steel-trap, though set by the owner for [*532] that purpose, and thus suffers pain or mutilation, we are not prepared to say that it would be needless torture or mutilation within the meaning of the statute. A literal construction of this act would seem to indicate that no one is permitted to kill or wound any living creature, however noxious, even a blackbird or a crow, or a skunk or a serpent, unless under some necessity, without being guilty of a penal offense. We do not understand such to be the meaning of this act. Whilst its object was to prevent cruelty to animals, and was intended as a humane provision for their protection, it was not intended to deprive a man of the right to protect himself, his premises and property, against the intrusions of worthless, mischievous or vicious animals by such means as are reasonably necessary for that purpose. The object of the statute was to protect animals from willful or wanton abuse, neglect, or cruel treatment, and not from the incidental pain or suffering that may be casually or incidentally inflicted by the use of lawful means of protection against them.
The defendant had the right to protect his premises against the depredations of mischievous dogs, and to use such means as were reasonably necessary for that purpose, and if the dog of the prosecutor, the identity of which was unknown to the defendant, was in the habit of committing these depredations, he had a right, if it was necessary to prevent them, to set a steel-trap for the purpose of capturing him, and if, while committing these nightly depredations, not being allowed upon the premises, by a bait, it was thus [*533] caught and mutilated, it would not be needless torture or mutilation within the meaning of this statute, and the jury should have been so instructed. Upon the facts of this case, as they appear in the record, even upon a full and correct charge, we would not be satisfied to permit this conviction to stand.
The judgment of the court below will be reversed and a new trial granted.