Johnson v. McConnell , 80 Cal. 545 ( 1889 )

McFarland, J., dissenting.

I dissent. The court finds that the defendant, in the first instance, “ discovered the ewes running about the field followed by three or four dogs, which seemed to be chasing them.” He went to the house, a quarter of a mile distant, for his gun. When he returned, having consumed time enough to walk half a mile, “ he found the ewes still running about the field in a greatly agitated and frightened manner, pursued by four dogs, which were apparently worrying and injuring them.” It is further found that “the effect of the chasing of the sheep was to greatly worry and injure them, which was known to defendant when he pursued and killed the dogs; that they were, in fact, injuried and worried by said chasing and running.” It was also found that defendant did not kill the dogs from any malicious feeling, but to protect the sheep. I think that this plainly brings the defendant within the protection of the statute. He was not compelled to wait until the dogs had actually seized the sheep to see if they were only in the playful exercise of an “educated ” trait of character, or if the taste of blood would have aroused a barbaric instinct derived from their wolfish ancestors which would have overcome the discipline of their semi-civilization.

The rule that a man’s intentions must be gathered from his conduct applies still more forcibly to dogs; and if a dog be found chasing sheep in a field of his owner’s neighbor, the common judgment of mankind is that his intent is bad. In Marshall v. Blackshire, 44 Iowa, 475, the court, in a case very similar to the case at bar, defines “worry” as follows: “To worry means to run after, to chase, to bark at”; and what the court finds in the case before us constitutes, in my opinion, “ worrying ” within the meaning of our statute.

I think that the judgment should be affirmed.

Beatty, 0. J., and Thornton, J., concurred with McFarland, J.