Harrington v. Miles

11 Kan. 480

• Court: Supreme Court of Kansas
• Decided: July 15, 1873
• Status: Published

Opinion

The opinion of the court was delivered by

Brewer, J.:

The only question really involved in this case is, whether a dog is the subject of larceny; for if it is, then words charging the stealing of a dog are actionable per se, as 'charging a crime involving moral turpitude. It may be conceded that at common law the answer would have been in the negative: 2 Wharton Am. Cr. Law, §1755; 4 Blackstone’s Com., 236; Findlay v. Bear, 8 Serg. & Rawle, 571. But under our statutes we think a different rule obtains. By §78 of the crimes act, (Gen. Stat., 332,) “the taking and carrying away of any money, goods, rights in action, or other personal property or valuable thing whatever,” is declared to be larceny. Now if a clog is personal property, or a thing of value, it would seem plain that the stealing of one was larceny within the statute. That a dog was property, was conceded at common law, as also that the owner might maintain a civil action for its loss: 4 Blackstone, 236. And this doctrine has universally been recognized in this country. Perry v. Phipps, 10 Iredell, 259; Hinckley v. Emmerson, 4 Cowen, 251; Parker v. Wise, 27 Ala., 480; Wheatly v. Harris, 4 Sneed, 468; Cummings v. Perham, 1 Mich., 555; Lentz v. Stroth, 6 Serg. & R., 34. In our own state the legislature at one time passed an act levying a tax on dogs: Laws 1867, p. 215, ch. 129. This act in one of its sections speaks of “ owners of dogs.” The same language is found in § 44 of ch. 105, Gen. Stat. p. 1011, where the owner of a dog is declared liable for injuries to sheep. It seems impossible in the light of these legislative and judicial expressions to decide that a dog is not property, nor a thing of value. And while the common law is'continued in force in this state it is only “in aid of the general statutes,” and as modified by constitutional and statutory laws, judicial decisions, and the conditions and wants of the people:” Gen. Stat., 1127, §3. We are constrained therefore to hold that a dog is property; that the stealing of one is larceny; and that words charging the stealing of a dog are actionable per se. See further as authorities, People v. Maloney, 1 Parker Cr. R., 593; State v. McDuffie, 34 N. H., 523.

The judgment of the district court will be affirmed.

All the Justices concurring.