State v. Clifton, 152 N.C. 800 (1910)

April 6, 1910 · Supreme Court of North Carolina
152 N.C. 800


(Filed 6 April, 1910.)

1. Cities and Towns — Ordinances—Police Powers — Killing of Dogs— “Willfully” — Words and Phrases.

A police officer of a town, acting within his duties imposed by an ordinance, in killing a dog running at large within the town limits without á muzzle, when not on the owner’s premises, cannot be convicted, under the statute, of “unlawfully, willfully and wantonly,” etc., killing a certain useful animal, etc., the word willful meaning not only designedly, but with a bad purpose.

2. Cities and Towns — Police Powers — Ordinances—Validity—Killing Dogs.

An ordinance of a city authorizing its police officers to kill, under certain circumstances, dogs running at large without being muzzled within the town limits, upon which city the charter confers police powers,' is a valid one.

Appeal from Lyon, J., at November Term, 1909, of RobesoN. The indictment charged that defendant did “unlawfully, *801willfully and wantonly ill-use, torment, wound, injure, poison and needlessly kill” a certain useful animal, to wit, “one bound dog, tbe property of E. E. McNair.” From tbe judgment imposed defendant appeals.

Attorney-General Bickett, George L. Jones, and McIntyre, Lawrence & Proctor for tbe State.

McLean & McLean for defendant.

BkowN, J.

Tbe defendant offered no evidence, but rested bis case upon tbe proof offered by tbe State.

Tbe evidence tended to prove tbat tbe dog’ was running at large off bis owner’s premises witbin tbe town of Lumber Bridge in Robeson County, unmuzzled, and was killed by defendant by tbe administration of poison. There is also evidence tbat tbe defendant was tbe town constable, charged with enforcement of tbe municipal ordinances which prohibited tbe running at large witbin tbe town of dogs without muzzles. Tbe ordinance provided further tbat any dog found running at large after 24 April, 1909, without a muzzle might be killed by any resident of tbe town, and tbat tbe dog in question was killed by tbe defendant, tbe constable of tbe town, after tbat date. The ordinance also imposed a fine upon tbe owner of tbe dog.

Tbe defendant in apt time by proper prayers for instruction requested tbe court to charge tbe jury tbat if there was such an ordinance in force, and be killed tbe dog in obedience to it, be was not guilty.

We think tbe defendant was clearly entitled to this instruction.

It is needless to consider whether a private citizen could justify under tbe ordinance, or whether tbe ordinance is too broad in providing such a general method of enforcement, for tbe defendant was a police officer whose duty it was to execute tbe lawful and talid ordinances of tbe town.

Tbe town of Lumber Bridge is invested with tbe police powers of tbe State conferred by tbe general law upon all tbe cities and incorporated towns of tbe State. Such powers are usually exercised to further and protect tbe comfort and safety of citizens generally.

Tbe keeping of animals of all kinds is classified as one of “tbe main subjects of police regulation.” Horr and Bemis Municipal Ord., see. 212.

A very general police regulation found in tbe ordinances of municipalities in this country is one “to require dogs to be muzzled and to authorize tbe police officers to kill those to be found *802at large and unmuzzled.” Ilorr and Bemis, subdiv. 3, sec. 213,, and cases cited in note to p. 200. In addition, tbe following cases are authority for the text: City of Faribault v. Wilson, 34 Wis., 255; Blair v. Forehand, 100 Mass., 136; Morey v. Brown, 42 N. H., 373; Mitchell v. Williams, 27 Ind., 62.

The word willful as used within the meaning of the statute implies something more than a mere voluntary purpose. When used in criminal statutes the word willful means not only designedly, but also with a “bad purpose.” 8 Words and Phrases, p. 7469, citing Potter v. United States, Sup. Court U. S., 39 Law Ed., 214; Commonwealth v. Kneeland, 37 Mass., 206, and other cases.

A police officer who in good faith kills a dog under color of the authority of a municipal ordinance .cannot be said to do so willfully, within the meaning of the statute upon which this indictment is founded. We think the rulings of the judge deprived defendant of the benefit of a valid defense.

New trial.