State v. Marshall , 13 Tex. 55 ( 1854 )

Wheeler, J.

The indictment was preferred under Article 560 of the Digest, and charged the defendant with having wilfully and maliciously killed a dog, the property of one Johm Williams. The Court quashed the indictment, and the question is, whether the killing of a dog is an offence within the statute.

By the Common Law, though a man may have such property in these animals as to entitle him to maintain a civil action for an injury done in respect of them, yet, as they are not classed among valuable .domestic animals, as horses and other beasts of draught or burden; nor among animals domitae naturae, which serve for food, as neat cattle, swine, poultry, and the like, the property in them is considered of so base a nature, and they are held in so little estimation, as property, that the stealing of them does not amount to the crime of larceny. (4 Bl. Com. 236; 1 Hale 512.) But by statute in England very severe penalties are inflicted for the crime of stealing a dog. (4 Bl. Com. 236, n.) And in some of the States, dogs are by statute placed upon the same footing as other personal property. (Whart. Am. Cr. L. Tit. “ Larceny.”) We have in this State no statute upon the subject. The statute upon which this indictment was framed subjects to punishment any person “ who shall wilfully and maliciously kill, maim, beat or wound any horse, cattle, goat, sheep “ or swine, or shall wilfully injure or destroy any other property of another.” It seems probable, from the use of the words “ injure or destroy,” in reference to the property designated by the phrase “ any other property,” that this latter expression was intended, (as is suggested by counsel for the appellee,) to include only inanimate property, to the injury or destruction of which, the terms “ kill,” “maim,” “wound,” &g., used in the preceding part of the section as descriptive of such injuries as may be inflicted upon the animals mentioned and upon animate property only, could not properly be applied. However this may be, dogs are not mentioned in the statute ; nor do they come within either class or description of the animals which are mentioned. They are not regarded by the law as being of the same intrinsic value, as property, as the animals enumerated in the statute; and cannot, we think, be brought within the prohibition under the general expression “ any other property,” by intendment. Nor, in point of fact, do we suppose it was intended by the law makers to include them. Had it been, they would doubtless have been included among the animals expressly enumerated. We are of opinion, therefore, that the indictment does not charge an offence known to the statute, and, consequently, that the Court did not err in its judgment, which is affirmed.

Judgment affirmed.