
    Commonwealth v. Shultz
    
      June 20, 1936.
    
      George 0. Wagner, district attorney, for Commonwealth.
    
      R. R. John, for defendant.
   Evans, P. J.,

On August 22, 1935, John Ortman and Benjamin Flickinger lodged informations before Austin H. Klase, a justice of the peace in the Borough of Danville, this county, charging that the defendant, Homer Shultz, did, on or about July 26, 1935, in Derry Township, this county unlawfully violate section 23 of the Dog Law of May 11, 1921, P. L. 522, wherein it is made “unlawful for any person, except a police officer, to kill, injure, or poison, or to attempt to kill, injure, or poison, any dog which bears a license tag for the current year.” The informations are precisely alike, the only difference being the names of the affiants.

Warrants issued the same day. The defendant appeared the next evening, August 23d, at 7:30, and both hearings were had at the same time. The defendant pleaded guilty to the charges, and a fine of $25 and costs was imposed in each case.

The informations charge the defendant with abstract violations of section 23 of the Dog Law of 1921, but they do not charge the defendant with killing dogs belonging to Ortman and Flickinger, or anyone else. The transcripts read precisely alike and are, in part, as follows:

“August 23rd, 1935, 7-30 P. M. Def. is brought in. Information is read, Def. pleads guilty to charge, whereby a fine of twenty five dollars together with costs is imposed. Def. refuses to satisfy same, and appeals the case, and furnishes bond (with surety) to the amount of sixty-five dollars ($65.00) for his appearance at the next term of Quarter Session Court of Montour County.”

On August 28th, defendant’s appeals were allowed. The defendant and his counsel believed he had been convicted of killing the Ortman and Flickinger dogs before the justice of the peace in proceedings in the nature of summary convictions. Is this a violent presumption? The appeals came on for hearing before the court on June 4, 1936, and were heard together, and from the testimony taken we find the following facts:

1. On July 26,1935, Homer Shultz, the defendant, and John Ortman and Benjamin Flickinger were resident farmers in Derry Township, this county, their farm buildings being approximately three quarters of a mile apart.

2. On said date John Ortman owned a small beagle and blue tick mixed male dog about eight months old; and Benjamin Flickinger owned a small brown female shepherd dog about four years old.

3. These dogs strayed about a mile away from their masters’ homes on July 26,1935, and were probably shot and killed and buried by the defendant during the afternoon of said day, while the dogs were pursuing and chasing some turkeys belonging to defendant’s wife. The turkeys at the time, an old hen and some six or seven young turkeys, were in the defendant’s oats field, in the shade near the woods, some 200 paces from his buildings. The old hen flew on a tree and the dogs jumped or pounced on some of the young turkeys.

Discussion

Section 23 of the Dog Law of 1921 provides that dogs are personal property and subjects of larceny and, except as provided in section 22 of the act, “it is unlawful for any person, except a police officer, to kill, injure, or poison, or to attempt to kill, injure, or poison, any dog which bears a license tag for the current year.” But section 22 of the act provides, inter alia:

“Any person may kill any dog which he sees in the act of pursuing, worrying, or wounding any live stock, or wounding or killing poultry, or attacking human beings, whether or not such dog bears the license tag required by the provisions of this act. There shall be no liability on such persons in damages or otherwise for such killing.”

These dogs were trespassing and, at the time they were shot and killed, were about a mile away from their masters’ homes, on the defendant’s land, and in the act of pursuing and chasing turkeys, poultry belonging to the defendant’s wife.

In the light of the uncontradicted testimony, we believe the defendant was well within his rights in shooting the two dogs.

And now, July 20,1936, we find the defendant, Homer Shultz, not guilty in each of these cases, and he is forthwith released and discharged from the obligation of his bonds. The costs of the clerk of the court of quarter sessions to be paid by the county.  