
    The Commonwealth v. Maclin.
    July, 1831.
    Criminal Law — Killing Dogs. — The statute of 1822-8, ch. 34, § 1, does not authorize a criminal prosecution for killing- dogs belonging to another.
    Case adjourned from the circuit court of Greenville.
    An information was filed against Maclin in the circuit court, for knowingly, wilfully, and without lawful authority, killing and destroying two dogs belonging- to one Turner, against the form of the statute in such case made and provided. The defendant demurred generally. And the circuit court adjourned to this court, the following question: What judgment ought the court to render on the demurrer put in to the information ?
    
      
       Criminai Law — Killing Dogs. — For the proposition that, the killing a dog of another is not an indictable offence, the principal case is cited and followed in Davis v. Com., 17 Gratt. 620, 631, 622. 623, 624. 625. See monographic note on “Indictments, Informa-tions and Presentments” appended to Boyle v. Com., 14 Gratt. 674.
    
    
      
       The statute on which the prosecution was founded (1822-3, ch. 34, § 1, Sess. Acts, p. 36,) is in the iollowing words: “Any person who shall knowingly and wil-fully, without lawful authority, cut down any tree, growing on the-land of another, or destroy or‘injure any such tree, or any building, fence, or other improvement, or the soil or the growing crop on the land of another; or shall knowingly or wilfully, without lawful authority, but not feloniously, take and carry away, or destroy or injure, any tree already cut, or any other timber, or property real or personal belonging to another, or any court house, church, meeting house, or other house used for public worship, or the grounds, enclosures, woods, or other appurtenances belonging or attached thereunto; or any building, public grounds or improvements, or their appurtenances, or any property whatsoever, real or personal, belonging to the public, or employed for public uses, or belonging to any county, parish or town, or employed for the use of any county, parish or town, or belonging to any court house, church, meeting house, or other house of public worship, or employed for the use of any of them; shall be deemed guilty of a misde-meanour, and may be prosecuted and punished as in other cases of misdémeanour at the common law, and shall moreover be bound to his good behaviour, by the court in which he shall be convicted, for such time and in such penalties' as the said court may direct.” — Note in Original Edition.
    
   *LEICxH, J.

This is a prosecution under the statute of 1822-3, ch. 34, and to sustain the prosecution, it must be held, that by the words “property real and personal” in the statute, the legislature intended to embrace dogs. Some of the judges are of opinion, that the act does not authorize a prosecution for the destruction of any kind of living domestic animals, and that by the words “property real and personal,” the legislature intended property of the same kind as that before enumerated; for that it cannot be supposed, that the legislature intended to embrace our valuable domestic animals, by the general word “property,” when in the preceding part of the act, it had specially named property of much less value. But, without expressing any opinion as to the correctness of this construction of the act, a majority of the court is of opinion, that a criminal prosecution cannot be sustained for the destruction of dogs. By the common law, the property in dogs and other inferiour animals, is not such as that a larceny can be committed by stealing them, though the possessor has a base property in them, and may maintain a civil action for injuries done to them. And, in a penal act, like the one now under consideration, the word “property” standing alone ought to be considered to mean full and complete property, such as by the common law may be protected by a public prosecution for the larceny thereof. Therefore, the court is of opinion, that it ought to be certified to the circuit court, that the demurrer ought to be sustained, and judgment rendered for the defendant.

JUDGES SMITH, UPSHUR, SUMMERS, W. BROWNE, FIEBD, LOMAX, and SCOTT, dissented.  