Hurley v. State, 30 Tex.App.

333 (1891)
17 S.W. 455, 28 Am.St.Rep. 916

in the penitentiary, and provide particularly that

the penalty shall attach to the theft of sheep,
30 Tex.App. 333
hogs, and goats. Article 679, Vernon's Ann.P.C.
Court of Appeals of Texas.
art. 1373, punishing malicious mischief, makes
HURLEY it an offense to willfully kill, wound, poison, or
v. disfigure any dog or other domesticated animal.
STATE. Held, that a dog may become the subject of theft,
and that, where he is shown to be worth at least
Oct. 31, 1891. $20, such theft is a felony.

Synopsis 6 Cases that cite this headnote

Appeal from district court, Bexar county; G. H. NOONAN,
Judge.
[3] Larceny
Property Subject of Larceny
Indictment against Henry Hurley for theft. There was a
The nature of property in dogs is such as to make
judgment of conviction, and defendant appeals. Affirmed.
them a subject of larceny.

2 Cases that cite this headnote

West Headnotes (3)

[1] Criminal Law Attorneys and Law Firms

Necessity of Setting Forth Evidence
Excluded **455 *333 McGinnis & Davis, for appellant. Richard H.
Where the trial court, in a criminal prosecution, Harrison, Asst. Atty. Gen., for the State.
sustains an objection to the testimony of a
Opinion
witness on the ground that it was offered to
show self-serving declarations on the part of the WHITE, P. J.
defendant, and the bill of exceptions fails to show
what was expected to be proven, the ruling will This appeal is from a conviction in the court below for stealing
be sustained. a **456 dog. As charged in the indictment, the offense
(omitting the formal parts) is stated as follows, to-wit: That
2 Cases that cite this headnote *334 Henry Hurley, “on the 7th day of the month of April,
one thousand eight hundred and ninety-one, in said county
[2] Larceny of Bexar and state of Texas, did then and there fraudulently
Property Subject of Larceny steal, take, and carry away from the possession of Charles
Pen.Code, art. 724, Vernon's Ann.P.C. art. Perner a domesticated animal, to-wit, one dog, of the value
1410, defines “theft” as “the fraudulent taking of fifty dollars, the property of the said Charles Perner,” etc.
of corporeal personal property belonging to At the trial appellant was convicted of the theft as alleged,
another.” Article 725, Vernon's Ann.P.C. art. and his punishment assessed at two years' confinement in
1411, declares that the property must have the state penitentiary. No question was raised in the court
some specific ascertainable value, and that it below upon the sufficiency of the indictment, in that it did
embraces every species of property capable of not state an offense against the laws of this state, nor does
being taken. Article 733, Vernon's Ann.P.C. art. counsel representing appellant by printed brief in this court
1419, includes, within the meaning of “personal in any manner question the legality of the prosecution and
property,” all domesticated animals, when of conviction, but their contention as to errors is based solely
some specific value. Articles 735, 748, Vernon's upon matters arising at the trial. So far as we are aware, this is
Ann.P.C. arts. 1421, 1442, make theft of the the first conviction in this state of a felony for stealing a dog,
value of $20 or over punishable by imprisonment and, owing to the rule as it obtained at the common law and

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Hurley v. State, 30 Tex.App. 333 (1891)
17 S.W. 455, 28 Am.St.Rep. 916

the contrariety of decision by the American courts upon the killing them have been sustained. Railway v. Holden, 3 Civil
subject, we deem it not inappropriate to determine in the first Cas. App. 323, and Railway Co. v. Hauks, 78 Tex. 300, 14
instance whether or not it is a felony under our present statutes S.W. Rep. 691.
to steal a dog. In the case of State v. Marshall, 13 Tex. 58,
Mr. Justice WHEELER says: “By the common law, though Our penal statutes, with regard to theft, bearing upon this
a man may have such property in these animals as to entitle question, are as follows: “Theft is the fraudulent taking of
him to maintain a civil action for an injury done to them, yet, corporal personal property belonging to another,” etc. Pen.
as they are not classed among valuable domestic animals, as Code, art. 724. “The property must be such as has some
horses and other beasts of burden, nor among animals domitiæ specific value which can be attained. It embraces every
naturæ, which serve for food, as neat cattle, swine, poultry, species of personal property capable of being taken.” Id. art.
and the like, the property in them is considered of so base a 725. Within the meaning of “personal property” which may
nature, and they are held in so little estimation as property, be the subject of theft are included all domesticated animals
that the stealing of them does not amount to larceny. 4 Bl. and birds when they are proved to be of any specific value. Id.
Comm. 236; 1 Hale, P. C. 512. But by statute in England art. 733. Theft of the value of $20 or over shall be punished
very severe penalties are inflicted for the crime of stealing by confinement in the penitentiary not less than 2 nor more
a dog. 4 Bl. Comm. 236, note. And in some of the states than 10 years. Id. art. 735. In article 748, Id., theft of sheep,
dogs are by statute placed upon the same footing as other hogs, and goats is specially named as an offense, with the
personal property. Whart. Crim. Law, tit. ‘Larceny;’ Heisrodt penalty affixed. It will be noted that our statute above quoted
v. Hackett, 34 Mich. 283. We have in this state no statute (article 725) embraces every species of personal property
upon the subject.” And in the case of Ex parte Cooper, 3 Tex. capable of being taken, and includes all domesticated animals,
App. 489, which was a case involving the constitutionality (articles 725, 733;) and, in addition to those statutes relating
of the dog-tax law, after quoting the above extract from to theft, by article 679 of the Penal Code, punishing malicious
Judge WHEELER in Marshall's Case, it was said: “At the mischief, it is expressly made an, offense to “willfully kill,
time that decision was made there was no statute making it maim, wound, poison, or disfigure any horse, ass, mule, cattle,
malicious mischief to kill a dog, but such animals have since sheep, goat, swine, dog, or other domesticated animal,” etc.
been included in that particular statute. Pasch. Dig. art. 2344. In the case of State v. Harriman, 75 Me. 562, under a statute
Besides that statute, we know of no other recognizing them which provided for killing or wounding “domestic animals,”
(in terms) among the domestic animals or as property. These it was held that dogs are not domestic animals, and that
authorities, we think, settle the first proposition, and to the a prosecution would not lie. We might, if necessary, draw
effect that, in law, dogs are not recognized as other property, the distinction between “domestic” and “domesticated.” as
and subject to an ad valorem taxation.” Mr BISHOP says: used in our statute; but we do not deem it necessary to do
Animals feræ naturæ, when reclaimed, become subjects of so. We quote approvingly the following language used by
larceny, provided they are fit for food, and not otherwise; APPLETON, C. J., dissenting from the opinion of the court
and he says: “Of animals of which, when reclaimed, larceny in that case: “A dog is the subject of ownership. Trespass
may *335 be committed, within the foregoing rules, are will lie for an injury to him. Trover is maintainable for his
pigeons and doves, hares, conies, deer, swans, wild boars, conversion. Replevin will restore him to the possession of his
cranes, pheasants, and partridges; to which may be added master. He may be bought and sold. An action *336 may
fish for food, including, undoubtedly, oysters. Of those of be had for his price. The **457 owner has all the remedies
which there can be no larceny, though reclaimed, are dogs, for the vindication of his rights of property in this animal as
cats, bears, foxes, apes, monkeys, polecats, ferrets, squirrels, in any other species of personal property he may possess. He
parrots, singing birds, martins, and coons. Though animals is a domestic animal. From the time of the pyramids to the
of the latter class may, when reclaimed, have a recognized present day, from the frozen pole to the torrid zone, wherever
value, and the right of property in them be protected in civil man has been, there has been his dog. Cuvier has asserted
jurisprudence, it is otherwise in criminal, on the ground, that the dog was perhaps necessary for the establishment
probably, that anciently they were deemed of no determinate of civil society, and that a little reflection will convince us
worth, and thus was established a rule which the courts could that barbarous nations owe much of their civilization above
not afterwards change.” 2 Bish. Crim. Law, §§ 771, 773. In the brute to the possession of the dog. He is the friend and
our state courts dogs have been so far regarded as property companion of his master, accompanying him in his walks, his
that civil actions for damages for negligently and willfully servant, aiding him in hunting, the playmate of his children,

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Hurley v. State, 30 Tex.App. 333 (1891)
17 S.W. 455, 28 Am.St.Rep. 916

an inmate of his house, protecting it against all assailants. the Alps, start out in search of lost travelers, the claim that
It may be said that he was feræ naturæ; but all animals, the nature of a dog is essentially base, and that he should
naturalists say, were originally feræ naturæ, but have been be left a prey to every vagabond who chooses to steal him,
reclaimed by man, as horses, sheep, or cattle; but, however will not now receive ready assent. In nearly every household
tamed, they have never, like the dog, become domesticated in in the land can be found chattels kept for the mere whim
the home, under the roof, and by the fireside of their masters. and pleasure of the owner, a source of solace after serious
*** In the present case the New Foundland dog ‘Rich,’ of labor, exercising a refining and elevating influence, and yet
the value of one hundred dollars, was ‘in the inclosure and they are as much under the protection of the law as chattels
immediate care of his master.’ He was domesticated. Whether purely useful and absolutely essential. This common law was
the property of the master was originally of a qualified nature extremely technical, and can scarcely be said to have a sound
or not is immaterial. The dog was under his dominion and basis to rest on. While it was not larceny to steal a dog, it
control. ‘While thus qualified property continues, it is as was larceny to steal the skin of a dead dog, and to steal many
much under the protection of law as any other property, and animals of less account than dogs. *** The artificial reasoning
every invasion of it is redressed in the same manner.’ 2 upon which these rules were based are wholly inapplicable to
Kent, Comm. 349.” “A dog, being a ‘domestic animal,’ and modern society. Tempora mutantur et leges mutantur in illis.
property, an indictment is maintainable, under Rev. St. c. 127, Large amounts of money are now invested in dogs, and they
§ 1, for his malicious destruction. When the statute made are largely the subjects of trade and traffic. In many ways
malicious mischief indictable, it was held that a dog was the they are put to useful service, and, so far as pertains to their
subject of absolute property, and the killing of one under the ownership as personal property, they possess all the attributes
act prohibiting malicious mischief was an indictable offense.” of other personal property. If the common-law rule referred
State v. Sumner, 2 Ind. 377. “There is such property in dogs to ever prevailed in this state, we have no doubt it has been
as to sustain an indictment for malicious mischief. State v. changed by legislation.” In the case of State v. Yates, 10 Crim.
Latham, 13 Ired. 33. In State v. McDuffie, 34 N. H. 523, which Law Mag. 439, there is a very learned opinion on the same
was like this, for maliciously shooting a dog, FOWLER, J., subject, and it was held therein that “a dog is ‘a thing of
says: ‘We can see no reason why the property of its owner in a value,’ and may be stolen, and burglary may be committed
valuable dog is not quite as deserving of protection against the by breaking and entering with intent to steal a dog.” So we
willful and malicious injury of the reckless and malignant as see that in other states the larceny of a dog has been held
property in fruit, shade, or ornamental trees, whether standing punishable upon the ground that he is a “domestic” animal;
in the garden or yard of their owner or in a public street, that he is “personal property,” and a “thing of value.” We think
or any other species of personal property.’ Dogs have been that under our statute there can be no question but that the dog
included under ‘property,’ and their malicious destruction has would come within the terms “domesticated animal,” and as
been held indictable. 2 Whart. Crim. Law, 1082. A fortiori is such become the subject of theft. In the case before us the dog
it so when the owner is subject to taxation for his dog.” was a fine pointer, which was shown to be worth at least $50,
and, as such, his theft would be under our statute a felony.
In the case of Mullaly v. People, 86 N. Y. 365, which was a
case for stealing a dog, it was held that the term “personal Defendant's only bill of exceptions was taken to the refusal
property,” as used in the New York statute, included dogs, and of the court to allow him to prove a conversation between the
that the *337 stealing of a dog was therefore larceny, under witness Cooper *338 and himself, relating to the dog, the
said provision. In the opinion it is said: “At common law, day after the dog was alleged to have been stolen. The bill
the crime of larceny could not be committed by feloniously of exceptions is defective in not stating or setting out what
taking and carrying away a dog;” citing authorities. After was expected to be proved by Cooper, and it appears that the
which it is said: “The reason generally assigned by common- court sustained the state's objection to the evidence, because
law writers for this rule as to stealing dogs to the baseness it proposed to introduce statements of the defendant which
of their nature, and the fact that they were kept for the mere were **458 self-serving declarations. We cannot see from
whim and pleasure of their owners. When we call to mind the bill itself that any error was committed. If the proposed
the small spaniel that saved the life of William of Orange, testimony offered was self-serving declarations, the court
and thus probably changed the current of modern history, (2 unquestionably did not err in excluding it. Harmon v. State,
Motley's Dutch Republic, 398,) and the faithful St. Bernards, 3 Tex. App. 51; Robinson v. State, Id. 256. We have found
which, after a storm has swept over the crests and sides of no other matters requiring a discussion, and, no error for

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Hurley v. State, 30 Tex.App. 333 (1891)
17 S.W. 455, 28 Am.St.Rep. 916

which a reversal would be warranted being made to appear, All Citations

the judgment is affirmed. All judges present and concurring.
30 Tex.App. 333, 17 S.W. 455, 28 Am.St.Rep. 916

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.

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