State v. Falkenham

Miller, J. delivered the opinion of the Court. Ealkenham was indicted in the Criminal Court of Baltimore under the recent Act of 1890, ch. 198 “in relation to cruelty to animals.” The indictment is very brief, and simply charges that on the 4th of October, 1890, he “ with force and arms, at the city aforesaid, unlawfully and 'willfully, did then and there engage in an act of cruelty to a certain animal, to wit, a horse; contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government, and dignity of the State. ' ’ To this a general demurrer was interposed, which the Court sustained, quashed the indictment, and gave judgment discharging the defendant. The State's Attorney thereupon filed a petition to have the record of the case removed to this Court as upon writ of error. This application was allowed, and the case is accordingly before us for review.

It has been ⁴⁶⁵ argued on the part of the State, hut no counsel has appeared on hehalf of the defendant. In the petition for removal, the errors assigned are, 1st, that the Court gave jxidgment sustaining a demurrer to the indictment. 2nd, that hy said judgment the Court determined that said indictment was insufficient in law, whereas the same was in all respects good and sufficient; and 3rd, that in thus sustaining the demurrer the Court ruled that an indictment will not lie in Baltimore City for the matters charged in said indictment, whereas under the Act of 1890, ch 198, such indictment will lie. The last assignment of error is the most important, because we understand from it that the learned Judge of the Court below took the view that the local law of Baltimore City (1 Code Public Local Laws, Art. 4, sec. 242,) codified from the Act of 1880, ch. 129, is the only law under which an indictment of this character can he framed. This section provides that “whoever shall unnecessarily overdrive, overwork, torture, torment, deprive of necessary sustenance, cruelly or unmercifully heat, cruelly mutilate, or cruelly kill, or cause or procure to he so unnecessarily overdriven, overloaded, overworked, tortured, tormented, deprived of necessary sustenance, cruelly or unmercifully beaten, mutilated or killed, any horse, ox, or other animal shall he punished ” hy a certain fine of not less than five nor more than twenty dollars.

It may well he that the indictment would be defective if it were framed under this local law ) and there were no other statute to support it. But as we have said it was framed under the Act of 1890, ch. 198. This Act, it must he observed, was passed not only long after the local Act of 1880, ch. 129, hut after the adoption of the Code of Public Local Laws. It is a general laxo on the subject of cruelty to animals, applicable to' the whole State.

By its first section it provides ⁴⁶⁶ that “any person who luillfully sets on foot,'instigates, or engages in, or in any way furthers any act of cruelty to any animal, or any act tending to produce such cruelty, or by any act, conduct, neglect or omission willfully causes, permits or suffers any animal to undergo any species of torture or cruelty, shall be deemed guilty of a misdemeanor;” and the second section declares “ that the words torture or cruelty shall be held to include everything whereby unjustifiable physical pain, suffering, or death is caused or permitted, and the word animal shall be held to include every living creature except man.” The Legislature has thus declared its will in the most' comprehensive terms. No specific penalty is attached as in the local law, but it is left to the Courts to impose the common law punishment of fine, or imprisonment in jail, or both, according to the circumstances of each case as it arises. We assume that the Court below, in holding that the local law was still in force, relied upon section 11, ‘Art. 1, of the Code, which declares that “ where the public general law and the public local law of any county, city, town or district, are in conflict, the Public Local Law shall prevail.” The construction and effect of