State v. Bogardus , 4 Mo. App. 215 ( 1877 )

On motion for a rehearing,

Lewis, P. J., delivered the opinion of the court.

Appellant files his motion for a rehearing of this cause, with a bi’ief assigning reasons why it should be granted. The points and arguments are the same that were presented on the first submission, and gain no strength by the addition of some hasty comments on the action of the court.

The writer of this opinion concurred in the judgment of reversal, but did not then consider it of sufficient importance to express his dissent from some of the reasoning by which it was supported. The conclusion that the acts charged against defendant were not within the legislative intent in ‘ ‘ An act for the prevention of cruelty to animals ” remains undisurbed.

However distasteful to the sympathies, the prejudices, or the preferences of the judge who delivers an opinion, his first duty is to declare the law according to the meaning of the law-maker. This he must ascertain by accustomed lights, whose guidance is endorsed by the experience of centuries. The current of public and social events, the drift of popular opinion, and the universal or prevailing estimate of specific acts among men at the time of the adoption of a statute, are, in many cases, matters of indispensable consideration in judicial interpretation. This is eminently true when a statutory general expression occurs whose application to a particular subject may be accepted, rejected, or modified, according to the moral impressions of him who is to make it. Such an expression appears in the terms <( needlessly killing.” Few words in our language have a more ambulatory significance than the word “ needless.”

There was, in England, a time when prize-fighting was held in the highest general estimation. The nobility, the gentry, and even the clergy, were among its enthusiastic patrons. If, during that period, Parliament had passed an act making it penal for persons to engage publicly in any brutal, disgusting, or demoralizing conflict, no court in the kingdom would have held this to include “the manly art of self-defence.” Why? Because, in the existing state of cultured ■opinion, it could not be supposed that the Parliament considered this ennobling exhibition as either brutal, disgusting, or demoralizing. The test of judicial interpretation would have been, not whether the judge considered the descriptive words appropriate to the thing done, but whether the legislative mind intended such an application of them. In the altered condition of Christian public sentiment at the present day, an act passed in the very same words would be held as directly aimed at that execrable practice, now happily denied any civilized toleration. This, however, not because of the judge’s disposition to reprehend it, but because of a weighty presumption that the Legislature meant so to do.

The universal love of so-called “ sports” which involve the destruction of animal life cannot now be ignored in a search after the legislative meaning in the act before us. Such diversions are not always resorted to for the needs of human sustenance. Yet they are not considered “needless” for man’s enjoyment of his legitimate dominion over the brute creation. The individual who finds a healthful recreation in gunning or fishing can hardly be told that this-must not be gained at the expense of his dumb subjects. The plea for life which he might hear, if the gift of speech were not denied, would have little weight against even the momentary triumphs of the marksman who brings down his game. It may be that the day will come when sentiments of mercy and humanity shall have so far advanced, with the progress of refining thought, that the man who can so estimate a fleeting satisfaction above a life, however lowly, which only Omnipotence can bestow, will be regarded as exceptionally selfish and cruel. But no such feeling prevails to-day. Nor can any such be supposed as a basis for the interpretation of a legislative enactment.

It could never be the policy of a good government to suppress innocent manly exercises, which tend either to promote physical superiority or to stimulate the courage and the consciousness of individual power, which, in times of public peril, so often prove the only means of safety. But in this general truth I fail to find for the acts here charged the moral justification implied in the able opinion heretofore delivered in this cause. All possible superiority in marksmanship could be quite as easily attained without the sacrifice of any life. Courage is practically cultivated nowhere but in the view of danger, real or supposed. In all the “manhood” that may be devoted to bloody conquests-over defenceless creatures, already captive, we cannot feel sure of finding the material that would best serve to defend the State. When no higher motive is apparent in the conqueror than that of “ displaying his skill as a marksman,” it may be doubted that his example is of a largely more elevating tendency than was that of the ancient tyrant who-plucked out the eyes of a slave in order to show the deftness of his fingers. But, execrable as the éxhibition may have been to the humane instincts which originated this prosecution, or however revolting to a judge who might be called upon to condemn it, the rule of interpretation already exemplified seems to leave no escape from the conclusion announced in our first judgment. An act such as this, identified in general features with popular diversions which, however indifferent to the value of brute life, have never been held “ needless” for man’s lawful delectation, could not have been within the legislative contemplation when this indefinite prohibition was made a law. For this reason I concur with my brother judges in overruling the motion for a rehearing.