State v. . Tweedy , 115 N.C. 704 ( 1894 )

It was competent for the town to enact the ordinance that no hogs should run at large within the town, limits, and to prescribe a penalty for violation of such ordinance, and it would make no difference if the owner of the hog should live outside of such limits. Rose v.Hardie, 98 N.C. 44; Hellen v. Noe, 25 N.C. 493; Whitfield v. Longest,28 N.C. 268. Penal statutes must be strictly construed. The Code, section 1002, applies only to the injury or killing of livestock "lawfully running at large." This hog was unlawfully running at large contrary to a valid town ordinance, according to the special verdict. The defendant could not, therefore, have been found guilty under The Code, section 1002, as held by his Honor. Besides, the indictment fails to charge the material allegation that the livestock was "lawfully" running at large, and judgment might have been arrested in this Court for insufficiency of the indictment. Rule 27 of this Court; Whitehurst v. Pettipher,105 N.C. 40. Nor could the indictment be sustained under The Code, section 1082, "Injury to Personal Property," as there is neither allegation nor finding that the injury was "wilfully and wantonly" done. The words "unlawfully and on purpose" will not supply their place.S. v. Morgan, 98 N.C. 641. The indictment is equally (706) insufficient under The Code, section 2482, "Cruelty to Animals." Upon the special verdict the defendant should have been adjudged not guilty.

Reversed.

Cited: S. v. Isley, 119 N.C. 864; Broadfoot v. Fayetteville,121 N.C. 420; Jones v. Duncan, 127 N.C. 119; C. v. Harwell,129 N.C. 551; 555; Owen v. Williamston, 171 N.C. 59, 60; Archer v. Joyner,173 N.C. 77; Marshburn v. Jones, 176 N.C. 524.