
    No. 1048
    UEBELE v. STATE
    Ohio Appeals, 7th Dist., Mahoning Co.
    Decided June 4, 1926
    414. DOGS — 1. A dog, killed or wounded, while chasing a rabbit, at command and within call of master is not a trespasser although on another’s property.
    2.A dog to be a trespasser must be running at large, out of anyones control and without connections physical or sympathetic with its owner.
    11004. STATUTES — Sec. 5838 GC. does not apply to acquit one of liability thereunder for killing or wounding a dog| while worrying sheep, incidental to chasing rabbits.
    Attorneys — Diser & Huey for Uebele; Anderson & Lamb and T. J. Thomas for State; all of Youngstown.
   SULLIVAN, J.

Uebele was arrested and convicted upon two counts by a Justice of the Peace under 13376 GC., the first count being for the unlawful torturing of a dog, and the second for needless mutilation. The facts upon which this conviction was based are that one Hetrick, who owned four beagle hounds, in company with two boys, went out to hunt rabbits. Soon thereafter a rabbit was stirred up and in chasing same they came upon Uebele’s property which contained some sheep and thereupon Uebele killed three of the dogs and left the other mutilated and mangled. There is a conflict of evidence as to whether the dogs were harrassing the sheep and as to whether the trouble went further than a mere harrassing.

Uebele claimed that the dogs were trespassers and that under 5838 GC. relating to the right to kill dogs which worry or kill sheep, he had a right to kill same. Upon these facts and defenses the case was appealed to the Mahoning Common Pleas which affirmed the lower court and error was prosecuted to the Court of Appeals to reverse the findings of the lower courts. The Court of Appeals held:

1. Upon the evidence the court is of the opinion that the dogs were not trespassers because they were within call or in the presence of their master at all times.
2. A dog is at large when a vagrant, when it runs at will, when it is absolutely beyond the control or call and is acting on its own initiative, and under such circumstances wherein there is no connection, physical or sympathetic, between the dog and master.
3. Sec. 5838 does not apply because to make it applicable it must be shown that it was the purpose and intent of the dog to worry the sheep and not as in this case where if the sheep were worried it was only an incident to the trailing of the rabbit.
4. Although the record is conflicting the court is bound by the law which forbids a reviewing court to reverse unless the verdict is clearly and manifestly against the weight of the' evidence.

Judgment therefore affirmed.

(Roberts & Farr, JJ., concur.)  