State v. Thompson ( 1948 )

Defendant, Frank Thompson, was convicted in the Des Moines Municipal Court of the charge of cruelty to animals, in violation of section 717.3, Code of 1946. From a judgment in accordance therewith, he has appealed.

Appellant's counsel apparently has entirely disregarded Rule 344 (a)(4), Rules of Civil Procedure, in the preparation of his brief and argument and only by an examination of his reply brief and argument do we find the propositions relied upon for a reversal. This being a criminal case, we are reluctant to penalize appellant for his counsel's shortcoming, but again we wish to remind counsel in particular, and the bar in general, of the necessity of compliance with our Rules.

The sole question presented by appellant is the sufficiency of the evidence to sustain the conviction. Appellee has submitted five propositions in an attempt to meet whatever theories appellant may have had when his brief and argument was filed, one of them being the sufficiency of the evidence and we confine this appeal solely to that proposition.

The record does not contain the information under which appellant was convicted, however, from a statement to the trial court by appellee's counsel, we understand the charge is cruelty to animals in that he supplied insufficient water, food and shelter for dogs in violation of section 717.3, Code of 1946, which section, so far as material here, provides:

"If any person torture * * * any animal, or unnecessarily fail to provide the same with proper food, drink, shelter, or protection from the weather * * * by which unjustifiable pain, distress, suffering, or death is caused or permitted to any animal or animals, whether the acts or omissions herein contemplated be committed either maliciously, willfully or negligently * * *" he shall be punished as therein provided.

[1] There is no dispute as to the legal questions involved. All parties recognize the elementary rule that a verdict of guilty, substantially supported by the evidence, will not be set aside on the grounds of insufficiency thereof, but will only be set aside where evidence is so utterly wanting that it cannot be sustained. State v. Schmidt, 239 Iowa 440, 30 N.W.2d 473; State v. Wilson,234 Iowa 60, 11 N.W.2d 737; State v. Hiatt, 231 Iowa 499,1 N.W.2d 664; State v. Crandall, 227 Iowa 311, 288 N.W. 85; State v. McKenzie, 204 Iowa 833, 216 N.W. 29; State v. King, 198 Iowa 325, 197 N.W. 981.

The record shows the following facts: Appellant, who resides in Des Moines and is employed by the Campbell Heating Company, has for the past year been picking up stray, and unwanted dogs, and shipping them to a serum company in Omaha, Nebraska. On the date in question and for about three months prior, appellant rented a vacant tract, largely a weed patch, in southwest Des Moines, where he kept these dogs in pens until sold locally or shipped to Omaha. On July 24, 1947, he had approximately thirty-eight dogs thus restrained. Some of them he had had about two months, while at least nine of them were picked up a day or so prior to July 24. They were mongrels of various size, sex, color and age. The shelters were of different size and character — some were cages on stilts with board floors; some had wire netting on the floor (the ground) and sides with boards on the top. They varied in size from 2 by 6 feet to 6 by 8 feet. In a shed near by was the hide and bones of a dead hog, and in another place the bones of a dead calf. There were about ten pens in all containing from thirteen dogs to one or two.

On July 24, these dogs were taken by the Animal Rescue League. Various witnesses testified for the State. In all instances the only time they observed these dogs was on the day in question. The dogs were described as very thin; they acted quite hungry; in very bad condition, and without question they had mange and some had distemper. At the time the various parties visited the pens, it was in the heat of the day. Few if any of the pens had water in them and what food, if any, consisted of dried buns and corn. Some of the water containers were too high to be used by the small dogs in the pens. All of the witnesses testified as to the dogs' tongues being out and their panting for breath, that they seemed wild and ferocious, and the pens were dirty. In an old barrel was a bitch with young puppies, with little protection from the sun, while in the shed was another litter of pups, but in both instances the mothers were not restrained in any manner.

Defendant testified that he always fed and watered the dogs twice daily. In the early morning before work and the late evening after work. A neighbor testified to seeing him about the pens frequently in the morning and evening. At the time the dogs were taken by the Animal Rescue League, pictures by a newspaper photographer were taken of the various pens and dogs. These photographs were offered in evidence by the State and are as important in determining the question before us as are the statements of the various witnesses.

The charge is that because of the manner in which these dogs were kept and cared for, they suffered unjustifiable pain, distress, suffering or death. Some of the witnesses for the State are breeders of fancy dogs. Their opinions as to the condition of the shelters and the dogs are under a comparison with their kennels and dogs. The superintendent of the Animal Rescue League and his wife state that they do not consider the shelters sufficient. Beyond the suffering from distemper and mange, which occurs in the best of families, there is no evidence of unjustifiable pain or distress upon the part of the dogs other than a panting and the hanging out of tongues. The day was extremely hot. The observations were made during the heat of the day, and, while water may have been desirable for them at that time, its absence does not show suffering. The dogs were thin and appeared hungry, yet it must be remembered that these dogs were strays and used to visiting the garbage cans in the alleys for their subsistence.

There remains the photographs. As to the admissibility thereof, and their value in determining fact questions, we quote from State v. Matheson, 130 Iowa 440, 443, 103 N.W. 137, 138, 114 Am. St. Rep. 427, 8 Ann. Cas. 430, quoting from Udderzook v. Commonwealth, 76 Pa. 340, 353, wherein it is said that photography "has become a customary and common mode of taking and preserving views as well as the likenesses of persons, and has obtained universal assent to the correctness of its delineations. We know that its principles are derived from science; that the images on the plate, made by the rays of light through the camera, are dependent on the same general laws which produce the images of outward forms upon the retina through the lenses of the eye. The process has become one in general use, so common that we cannot refuse to take judicial cognizance of it as a proper means of producing correct likenesses." Again, it is not the condition of the shelters, nor the quality of the food nor the general surroundings which constitutes the crime of cruelty to animals, but the effect thereof upon the animals. Under this entire record, not only do we fail to find substantial evidence of the cruelty contemplated by the statute in question, but in the light of the photographs there is a total lack of evidence of unjustifiable suffering upon the part of the dogs.

[2] The State has failed to sustain the burden of showing beyond a reasonable doubt an "unnecessary failure to provide proper food, drink or shelter" or "unjustifiable pain, distress, suffering, or death" as a result thereof.

The cause is reversed with directions to dismiss the complaint. — Reversed.

MULRONEY, C.J., and OLIVER, BLISS, WENNERSTRUM, MANTZ, and SMITH, JJ., concur.

GARFIELD and HALE, JJ., dissent.