
    The State vs. Laban H. Trapp.
    
      Malicious Trespass — Ownership—Killing Dog.
    
    Where, in an indictment for malicious trespass in killing a dog, the only description of the dog was that it was the properly of J. B., held, that proof that the clog was the property of O., a son of J. B., who was eighteen years old, and who resided with his father, and to whom it had been given by his sister, did not sustain the indictment, and new trial ordered.
    Is a clog ‘personal property’ within the Act of 1861, so that an indictment, for a malicious trespass in killing it, can be maintained ?
    BEFORE W. R. ROBERTSON, ESQUIRE, DISTRICT JUDGE, FAIRFIELD, FEBRUARY TERM, 1867.
    The report of the District Judge is as follows:
    “The defendant is indicted under Act of December, 1861, (12 Stat. 903,) for malicious trespass, in killing a dog, the property of Jacob Bookman, the prosecutor.
    “It appeared from the testimony of Algernon Bookman, an intelligent youth of sixteen, son of the prosecutor, that as he was passing from his father’s fields to his home, having with him two dogs, he was met on the highway by the defendant, who charged him with having killed his, the defendant’s, hog. This the youth denied. The defendant thereupon shot down one of the dogs, the most valuable one, within three feet of the witness; and was proceeding to reload his gun with the declared purpose of killing the other dog, when the young man succeeded in getting him out of his reach.
    “The defendant and prosecutor were not friendly.
    “At some time between the killing of the hog and dog, the defendant stated to a neighbor that Bookman had had one of his hogs killed, and that he intended to kill Bookman’s dog. The neighbor advised, him not to do so, but to send some one to Bookman and he thought Bookman would pay him for his hog. To this defendant replied, ‘that he intended to kill the dog, for that Bookman had run over him long enough.’
    “ As to the ownership of the dog, Algernon testified that it had been brought to his father’s from his grandmother’s by his áister when it was a pup, and that she afterwards gave it to her brother Chalmers, who claimed it up to the time it was killed. That Chalmers was about eighteen years old and lived with his father.
    “ As to the value of the dog, the witness stated that he was ‘valuable,’ ‘a good watch-dog, and a gobd hunting-dog, and that he was about three years old.’ There was, however, no pecuniary value fixed by the testimony.
    “ The defendant offered no testimony. His counsel urged for his defence: First, that dogs, were not ‘personal property ;’ Secondly, that if they were ‘personal property,’ they were only so in exceptional cases, and a special value should be proved; and, thirdly, that the proof wasrthat the dog belonged to Chalmers Bookman, the son of the prosecutor, and not to the prosecutor, Jacob Bookman.
    “I held, and so charged the jury, that a dog was, in contemplation of law, ‘property.’ That they were universally so regarded, and that it was not necessary that any special pecuniary value should be fixed by the testimony to bring them within the denomination of ‘property.’
    “It was moreover proved that the dog was ‘valuable,’ and I held that a dog which is not merely a pet, but serves some valuable and useful purpose, such as guarding the premises of its owner, to have an actual value, and hence to be ‘ property.’
    “I further held, and so charged the jury, that a dog claimed or owned by a minor child living with its father, was sufficiently described in an indictment as the property of the father. That in the common acceptation of the country, dogs owned by the children of a family were regarded as belonging to the father; and that, in any view, there was in the fact of the possession and control of the father over the dog such a qualified property as was sufficient to sustain the indictment. In this connection I stated that, in my judgment, any property held or claimed by a minor child living with its father was sufficiently described as the property of the father, unless given to the child by some deed of trust or other special act which would preclude the idea of ownership in the father. That the ownership of the dog by a minor son living with his father is always by the permission of the father, at whose expense the dog is kept, and often, as in this case, for whose benefit the dog is allowed to remain upon the premises; and that it rarely happens that a watch-dog ’ kept by a family is not nominally the property of some one of the children, to whom often, as in this case, the nominal ownership is determined by the dog having been given to that child.
    
      “ The defendant was convicted.”
    The defendant appealed, and now moved this Court to arrest judgment, on the grounds:
    1. Because the Act of the Legislature from which the indictment in this case is framed does not mention dogs, so that, in order to sustain the indictment, they will have to come under the head of “ other personal property;” and it is submitted that dogs are not in law regarded as personal property.
    • 2. Because, if dogs are ever entitled to rank as personal property, it is only in exceptional cases, where a special value is proved, and no value being proved in this case, it is submitted that the killing of the dog was no malicious trespass in the sense of the Act of-the Legislature under which the defendant was indicted.
    3. Because it was proved by one of the prosecutor’s own witnesses, and not attempted to be contradicted, that the dog killed by defendant was given to Chalmers Bookman, a minor son of Jacob Bookman, by one of his relatives, and hence was his property, if property he was, though it was stated in the indictment that the dog was the property of Jacob Bookman,, the prosecutor.
    Failing on the above grounds in arrest of judgment, defendant then moved for a new trial, on the grounds:
    1. Because his Honor, the presiding Judge, it is respectfully submitted, erred in charging the jury that property given to a minor child residing with its parents belongs to the father, unless settled on the child by deed of trust.
    2. Because, it is submitted, his; Honor erred in instructing the jury, that in the case then before them it was unnecessary to prove that the dog was of any value whatever.
    Rutland, for appellant.
    
      Melton, solicitor, contra.
   The opinion of the Court was delivered by

Inglis, J.

The rules of criminal pleading require sufficient certainty in the necessary descriptions of the indictment to protect the defendant against another prosecution for the same act. So far as the report of the trial below informs this Court of the terms of the present indictment, the only description of the dog, the killing of which constituted the trespass, so as to distinguish it from any other dog, is by an allegation of the ownership. It is described as the property of Jacob Bookman. The ownership is a usual element of description in all indictments for offences against property. Here it constitutes the whole description.

The proof is very clear that the dog killed by the defendant was the property of Chalmers, a son of Jacob Bookman eighteen years old and residing with his father. It was, when, two years old, given to him by his sister, who got it at her grandmother’s.

Articles of property furnished by a father, in fulfilment of his natural duty to provide for his children, to his minor son who lives with him, may be described in an indictment, even for larceny, as the property either of the father or of the son. The general property may be said to be in the father who has bought and paid for them — the use in the child. (2 Russ. Cr. 94; The State vs. Williams, 2 Strob. 229.) But where, in an indictment for larceny of certain articles of wearing apparel, the property was laid to be in J. W., and the proof was that they belonged to a son of J. W., nineteen years old, bound apprentice to his father and entitled by the covenants of his indentures to be supplied with his clothing, the Court held the indictment defective. 2 Russ. Cr. 95.) The clothing had been furnished not in discharge of the father’s natural duty, but in performance of a contract and for a valuable consideration. Whatever property he had held in them had been divested, and the ownership was exclusively in the son.

A dog, although for some purposes regarded in law as the subject of property, ministers rather to the pleasure than to the necessities or profit of his owner, especially when the latter is a youth. It is not, therefore, such an article as the father is bound to furnish to his minor child living with and dependent upon him. The dog of Chalmers Bookman was not given to him by his father, nor had the latter ever owned it. The son’s title was wholly independent of the father.

The Court is, therefore, constrained to say that the charge in the indictment was not sustained by the proof. The case must go back for another trial. If, however, the State can make no other proof of ownership than that heretofore made, this indictment cannot be sustained.

The Act under which this proceeding was instituted is a new penal statute, subjecting the convicted offender to fine and imprisonment. It should, in favor of the liberty of the citizen, be strictly construed. Dogs are not expressly mentioned in the enumeration contained in the Act, (12 Stat. 903, A. A. Jan., 1861,) though several other animals are, all of them, however, such as may be the subject of larceny. If embraced at all, they can only be under the general description, “other personal property.” The right of property in dogs has not hitherto been regarded in the law such as that an injury to or a violation of it 'can be punished criminally. The Court hesitates, therefore, to say, in the absence of an express declaration of legislative intention to this effect, that tbe malicious killing of a dog constitutes such a trespass as this statute designed to punish. But on this point no satisfactory conclusion has been attained by us, and as a decision of the question touching it, which is raised in the appeal, is not essential to the disposition of this case, none is intended to be made.

The motion for a new trial is granted.

Dunkin, C. J., and Wardlaw, A. J., concurred.

New trial granted.  