Commonwealth v. Lewis , 140 Pa. 261 ( 1891 )

Opinion,

Mr. Chief Justice Paxson:

The defendant was indicted in the court below, under the first section of the act of March 29, 1869, P. L. 22, which provides that any person who shall wantonly or cruelly ill-treat, overload, beat, or otherwise abuse any animal, shall be deemed guilty of a misdemeanor, etc. The specific charge in the indictment was that the defendant did “ unlawfully, wantonly, and cruelly shoot, wound, torture, abuse, and ill-treat a certain pigeon,” etc. The jury found a special verdict, upon which the court below entered judgment for the commonwealth. We are therefore limited to the facts so found.

From the verdict we learn “ that the defendant was a member of an association called the Philadelphia Gun Club, which association is accustomed to hold pigeon-shooting matches upon its grounds at Andalusia, Bucks county, state of Pennsylvania, for test of skill of marksmanship ; that on the fourteenth day of December, 1887, the defendant attended one of the said pigeon-shooting matches, and, for the purpose aforesaid, fired, with a gun, upon certain pigeons liberated from a trap, killing one and wounding another. The bird so wounded alighted upon a tree, and, as soon as its wounded condition was discovered, it was killed by a member of said club for and on behalf of said defendant, according to the custom of said club in regard to wounded birds. The birds so killed were immediately sold for food, according to the rule and custom of said club.”

We have thus the finding of the jury that the object of this association was to test the skill of its members in marksmanship. In other words, it was a training school for sportsmen, in which they could acquire skill in shooting on the wing. This being the object of the association, the jury further found that the defendant attended “ for the purpose aforesaid.” It was conceded that, had he killed his bird, he would not have been liable under the act of 1869; but having merely wounded it, he was guilty of cruelty under said act; so that the crime consisted, not in the fact of shooting at the bird, but in wounding instead of instantly killing it. From the facts found by the jury, the defendant has merely been punished for want of skill.

It is doubtless true that much pain and suffering is often caused to different, kinds of game by the unskilfulness of sportsmen. A squirrel, badly wounded, may yet crawl to its hole, and suffer for many hours or days, and die. So with birds. They are often badly wounded, and yet manage to get away only to suffer. It was not pretended that the act applied to such cases. The sportsman in the woods is not responsible for the accuracy of his aim, under the act of 1869. At the same time, it is manifest that much suffering would be spared wild game, if sportsmen were better trained. Skill in shooting upon the wing can only be gained by practice. It is not so with inanimate objects. There, accuracy of aim can be acquired by shooting at a mark. It is conceded that the sportsman in the woods may test his skill by shooting at wild birds; why then, may he not do the same with a bird confined in a cage, and let out for that purpose ? Is the bird in the cage any better, or has it any higher rights, than the bird in the woods ? Both were placed here by the Almighty, for the use of man. They were not given to him to be needlessly and cruelly tortured, and ■were there anything in the finding of the jury to show that the object of this association was to torture pigeons, we would not hesitate to sustain the judgment of the court below. But no such purpose appears, nor is there any finding that the defendant was guilty of needless and wanton cruelty. The bird was immediately killed, as soon as its condition was discovered.

A distinction was pressed upon the argument, between the ease of a captive bird and one at large in the woods. In the latter instance there is a necessity to shoot it in order to capture it for food or other lawful purpose, and, if wounding results, it is an unavoidable incident; while in the case of a captive bird no necessity exists for putting it to death in this way. Some force may be conceded to this as an abstract proposition, but we do not see its application to the facts of this case. The right to kill the pigeon was and must be conceded, and there is no finding of the jury that its suffering was greater because of the manner of its death than if it had been killed in some other way. This is a scientific question which I do not feel myself competent to pass upon. Nor do I think the average juryman is any better qualified to do so. It may be that science, in the future, will discover the method of killing a pigeon with the least possible pain. So far as other animals are concerned, it is perhaps an open question, and the attempt of well-meaning humanitarians, in a sister state, to reduce the suffering of condemned criminals by putting them to. death by electricity instead of by hanging, has produced a long controversy which can hardly be regarded as settled. An attempt has been made, so far unsuccessfully, to show that it is unconstitutional because of its cruelty.

We do not say there might not be a violation of the act of 1869"at a shooting match, but, in our view, the facts found by the jury do not bring this case within it.

The judgment is reversed.