Commonwealth v. Toney

9 Pa. D. & C. 631, 1926 Pa. Dist. & Cnty. Dec. LEXIS 111

• Court: Lehigh County Court of Quarter Sessions
• Decided: November 22, 1926
• Docket: No. 99
• Status: Published

Opinion

Reno, P. J.,

The case is before us upon an appeal from a summary conviction proceeding, wherein defendant was adjudged guilty of possessing a dog in violation of the Act of May 24, 1923, §.§ 901-903, P. L. 359. The defendant is an unnaturalized foreign-bom resident of Lehigh County. Upon the premises occupied by him is a dog, which, according to the undisputed evidence, is the property of defendant’s minor son, who was born in ;he United States and who acquired the dog as a gift from a neighbor. The iuestion is whether defendant has violated the act by permitting the son’s iog to be upon premises occupied by defendant.

The act (section 902) forbids “any unnaturalized foreign-born resident to ¡ither own or be possessed of ... a dog of any kind,” and provides (sec-ion 902) that “the possession ... of a dog of any kind, at any place outside >f buildings, by an unnaturalized foreign-born resident shall be prima facie ¡vidence of a violation of the provisions of this article,” and that “the presume ... of a dog of any kind in a room or house or building or tent or camp if any description occupied or controlled by an unnaturalized foreign-born ■esident shall be prima facie evidence that such . . . dog is owned or con-rolled by the person occupying or controlling the property in which the same s found, and shall render such person liable to the fines imposed by this irticle.” That is, the ownership or possession of a dog is unlawful, and yrima facie evidence, but only prima fade evidence, of such illegal ownership >r possession is supplied by possession outside of a building or by the pres-mce of a dog in a building, etc., occupied or controlled by an unnaturalized oreign-born resident.

It follows, then, that, there being a dog upon premises occupied and con-rolled by defendant, he is prima facie guilty of violating the act. But having hown by testimony which the Commonwealth does not dispute that the dog n fact is not owned by him nor possessed by him, is not the prima facie case vercome? We confess to considerable reluctance in answering this question in the affirmative; for such answer, it seems, provides an easy method whereby unnaturalized foreign-born residents may have dogs upon their premises. Yet, try as we will, we cannot come to any other conclusion than that so well and lucidly stated by Judge Copeland in Com. v. Gatti, 29 Dist. R. 537, a case similar to the one at bar, except that the dog in this case, being under six months of age, has not been taxed. Accordingly, the reasoning of that case must control the decision here.

This matter should be called to the attention of the legislature, which should enact legislation which will cover the situation here presented. Unquestionably, the legislative intent was to prohibit the presence of dogs upon premises of unnaturalized foreigners, and the legislation should plainly interdict that act and penalize it instead of making it merely prima, facie evidence of an offence.

Now, Nov. 22, 1926, the judgment of the alderman is reversed and the defendant is discharged. From Edwin L. Kohler, Allentown, Pa.