California
People v. Sanchez
114 Cal.Rptr.2d 437
Court of Appeal, 3rd District, California, 2001
FACTS: In August of 1997 Sanchez’s neighbors went to his property because a calf had been bawling loudly for 2 or 3 days and could be heard by neighbors a mile away. The neighbors found animals living in hideous conditions. The calf was tied to a post, unable to get any food or water. Eight rabbits were caged without food or water, 4 were dead and 4 were dying. The bodies of several dead ducks, chickens and geese were scattered about. A corpse was being eaten by a dog. In June of 1998, an animal control officer went to Sanchez’s property and found several severely malnourished geese. He opined that they may have been without food or water for up to a month. Other neighbors testified that at unspecified times, they saw a chicken tied around a dog’s neck, they saw Sanchez firmly kick dogs with steel-toed boots for no apparent reason, they found a burn pit at the back of the property containing dead and dying calves and chickens, and saw dead cows, starving dogs, and dead rabbits. In 1999, a police officer went to the property where he found a dead peacock in a pit and a pig’s head attached to a tree. In June of 1999, the same officer found a puppy with one dead eye and a deeply infected hole between its eyes, which was full of live maggots that were moving and eating inside the wound. The puppy was impounded and euthanized. Sanchez was arrested and charged and convicted of multiple counts of animal cruelty. He appealed 7 of the counts. At issue was the requirement of a unanimity instruction. A unanimity instruction is used when the State charges one crime but relies on multiple acts to support that one crime. When multiple acts are alleged the jury must be unanimous as to which act or incident constitutes the crime.
ISSUES: Whether animal abuse may be committed as a continuous course of conduct, and when so committed requires no unanimity instruction; whether a unanimity instruction was required with respect to the count alleging cruelty to dogs in view of evidence of 2 separate incidents each of which established the offense; whether unanimity instructions were required as to counts alleging that defendants had abused rabbits, ducks, chickens, and geese, as each was based on a continuous course of conduct; whether a unanimity instruction was required with regard to the count alleging defendant’s failure to provide any medical treatment for the severely wounded puppy.
HOLDINGS:
1) A unanimity instruction must be given where the evidence shows that more than one criminal act was committed which could constitute the charged offense, and the prosecution does not rely on any single act.
2) A unanimity instruction is not required where the criminal acts are so closely connected as to form a single transaction or where the offense itself consists of a continuous course of conduct.
3) An offense is of a continuing nature when it may be committed by a series of acts, which if individually considered, might not amount to a crime, but the cumulative effect is criminal.
4) When the language of the statute focuses on the goal or effect of the offense, the offense is a continuing offense.
5) Animal abuse may be committed as a continuous course of conduct, and when so committed requires no unanimity instruction.
6) Unanimity instruction was required with respect to count alleging cruelty to dogs in view of evidence of 2 separate incidents each of which established the offense.
7) Unanimity instructions were not required as to counts alleging that that defendant had abused rabbits, ducks, chickens, and geese by failing to provide adequate food and water on ongoing basis, as each count was based on a continuous course of conduct.
8) No unanimity instruction was required with regard to counts alleging failure to provide any medical treatment for severely wounded puppy.
California
People v. Baniqued
85 Cal.App.4th 13
Court of Appeals, 3rd District, California, 2000
FACTS: On July 26, 1997, a police officer responded to a tip about cockfights in progress on Baniqued’s property. When she and another officer searched a barn on the property, they found numerous half-dead roosters who had suffered large, gaping wounds. A full search of the barn produced about 100 birds in total, some dead, some half-dead, some living, some in cages, some in barrels and some in sacks. The officers also found blood, feathers, a bucket containing birds’ feet and legs, gaffs, knives, burnt bird carcasses, and a large number of betting slips. They found Defendants Bito and Baniqued, covered in blood, hiding in a back room. Baniqued denied any knowledge of cockfighting or dead birds but a search revealed several betting slips inside one of his pockets. Bito admitted to attending cockfights and gambling on them. A jury found Baniqued guilty of 3 felony violations of the animal cruelty statutes and 4 misdemeanors. Bito was found guilty of a felony violation of subjecting animals to needless suffering. The trial court suspended imposition of the sentence of each defendant and granted 4 years formal probation and imposed various fines and fees.
ISSUES: Whether roosters and other birds are protected by the animal cruelty statutes; whether Jett v. Municipal is inapposite; whether the existence of supposedly “specific” legislation dealing with cockfighting precludes defendants’ prosecution under the more “general” animal cruelty statutes.
HOLDINGS:
1) The word “animal” as it is used in section 597(a) and (b) unambiguously includes a rooster or other bird. The legislature did not intend to restrict the phrase to mammals; the use of the adjective “every” in “every dumb creature” in section 599(b) indicates that a broad meaning was intended.
2) Jett v. Municipal did not construe the meaning of “animal” for purposes of section 597(a) and (b); it is not good authority for the proposition that only a mammal is an “animal” for purposes of 597(a) and (b); Jett is limited to the conclusion that a tortoise is not a “fighting” animal for purposes of section 599aa and 597b.
3) The plain language of section 597(c),(d), and (e), evinces a far-ranging intent to punish cruelty against “every dumb creature” even when the creatures involved are certain wild mammals, birds, reptiles, amphibians, or fish. “Birds” in section 597 are not limited to endangered, threatened, or protected species described in subdivision (d).
4) It is possible to violate sections 597(c), (i) and (j) without violating section 597(a) or (b); specific statutes punishing various crimes as misdemeanors do not preclude defendants’ prosecutions and convictions for felonies under the animal cruelty statutes.
5) If activity in a particular case involves the malicious and intentional maiming, mutilating, torturing, or wounding of roosters, the subjection of roosters to needless suffering, the cruel killing of roosters, or some other violation of the animal cruelty statutes, then the person is properly convicted of either a misdemeanor or a felony.
Indiana
Hall v. State of Indiana
791 N.E.2d 257
Court of Appeals of Indiana, 2003
FACTS: On 12/30/00, a police officer witnessed Mark and Chris Hall shoot a cat approximately 20 times with a rifle. When the police officer approached, he found the cat had been hit numerous times and was dead. The State charged both Mark and Chris with cruelty to an animal. Chris and Mark were each convicted of cruelty to an animal, a Class A misdemeanor. Mark was also convicted of dealing in a sawed-off shotgun, a Class D felony. Chris was sentenced to one year suspended and to be served on probation and Mark was sentenced to three years incarceration, with six months executed and to be served in a work-release program and thirty months suspended and to be served on probation. Defendants appealed claiming 1) no evidence was presented at trial that a shotgun was used as alleged in the charging information, 2) the allegation in indictment that 30 projectiles were fired into the cat was inconsistent with the evidence, and 3) the evidence was insufficient to support the conclusion that defendants mutilated the cat. The Court of Appeals affirmed the judgment of the trial court.
ISSUES: Whether variance between the information charging defendant with cruelty to an animal, which alleged use of a shotgun, and the proof adduced at trial, which was that defendant used a rifle, required reversal; whether the variance between the allegation in the indictment and the proof adduced at trial regarding how many times defendant shot the cat was fatal to state’s case; whether sufficient evidence existed to support the conclusion that defendants mutilated the cat.
HOLDINGS:
1) There was no indication in the record that defendant objected to variance of evidence regarding what type of gun was used. Failure to make a specific objection at trial waives any material variance issue. Furthermore, the means used to commit animal cruelty is not an element of the crime. Any variance between the pleading and the proof did not require reversal.
2) The means used to mutilate a cat is not an element of the crime. Defendants were not harmed by any variance between the charging information and the proof presented as to how many times the cat was shot.
3) Although shooting an animal once and killing it instantaneously does not constitute mutilation, the evidence here reveals that the cat was hit multiple times. From this a reasonable jury could conclude that the cat was mutilated, i.e., altered radically so as to be made imperfect.
4) The act of shooting an animal more than once is not mutilation per se; each case will be judged on its individual circumstances.
Indiana
Elisea v. State of Indiana
777 N.E2d 46
Court of Appeals of Indiana, 2002
FACTS: Shawn and William Stratton hired Elisea to perform ear croppings on 2 of their pit bull puppies. Elisea was not licensed to practice veterinary medicine. Elisea bound the dogs’ legs and mouths with tape, marked a line along each ear with eye pencil, numbed the ears with ice, and without any anesthetic, cut the dogs’ ears with a pair of office scissors. ACC officers later found the puppies at the Stratton’s home with “no ears at all” and “covered in blood.” Elisea was charged with one count each of cruelty to an animal and practicing veterinary medicine without a license. He was found guilty and sentenced to a 1 year executed jail sentence. Elisea appealed claiming that the State presented insufficient evidence.
ISSUES: Whether the evidence presented was sufficient to sustain the finding that Elisea’s actions met the statutory definition of cruelty to an animal; whether the evidence presented was sufficient to overcome Elisea’s defense that he engaged in a reasonable and recognized act of handling puppies; whether the evidence presented was sufficient to establish that Elisea practiced veterinary medicine without a license; whether the sentence imposed was too harsh.
HOLDINGS:
1) Cropping a puppy’s ears with an office scissors and without anesthetic is not a reasonable and recognized act of handling dogs. Such actions meet the statutory definition of “knowingly or intentionally torturing, beating, or mutilating a vertebrate animal resulting in serious injury or death to the animal.”
2) The act of cutting the puppies’ ears was a surgical procedure for which Elisea accepted money and such actions meet the statutory definition of engaging in the practice of veterinary medicine.
3) A one year executed sentence for the crimes of cruelty to an animal and practicing veterinary
medicine without a license is not too harsh.
Missouri
State of Missouri v. Roberts
8 S.W.3d 124
Missouri Court of Appeals, 1999
FACTS: Roberts’ dog ran away when Roberts stepped on it. When he called the dog to come back it did not listen. Roberts then beat the dog to death. A postmortem exam revealed that trauma, some hemorrhage and pain and poor heart function from heartworms triggered the dog’s death. Five of the dog’s ribs were broken and the ends of the ribs tore into the surrounding muscles and severed arteries. Several large bruises, not visible externally, were found in the tissue under the skin of the abdomen as well as subcutaneous bruises above the dog’s right hip. A question remained as to whether or not Roberts sodomized the dog. In order to find a defendant guilty of felony animal abuse, the state must show that an animal’s suffering was the result of torture and mutilation. A jury determined that the state met its burden and found Roberts guilty of felony animal abuse. The circuit court set aside the jury’s verdict stating that “mutilation” requires some sort of external injury, that there be some scarring or that there be some kind of destruction to a limb or other part of the body. It entered judgment against Roberts for misdemeanor animal abuse instead. The Appellate Court reversed stating that the definition of “mutilation” does not exclude internal injuries.
ISSUES: Whether Section 578.012 of Missouri law mandates that “mutilation” requires some sort of external injury, that there be some scarring or that there be some kind of destruction to a limb or other part of the body; whether the evidence presented established that the dog’s suffering was the result of torture and mutilation for purposes of finding Roberts’ guilty of felony animal abuse.
HOLDINGS:
1) The MO General Assembly intended the courts to interpret the definition of “mutilation” by giving the term its plain and ordinary meaning; thus, the definition of “mutilation” does not exclude internal injuries. 2) To beat a dog until its ribs are so broken that they not only do not function to protect chest organs but cut and destroy surrounding muscles and arteries constitutes mutilation. To beat a dog for at least an hour constitutes torture. The jury had a sound basis for finding Roberts guilty of felony animal abuse.
Oregon
Oregon Game Fowl Breeders Ass’n v. Smith
516 P.2d 499
Court of Appeals of Oregon, 1973
FACTS: Plaintiffs, Oregon Game Fowl Breeders Association, raise fowl in order to sell the birds to people who then engage them in combat. However, for the purpose of maintaining the purity of their breeding stock, plaintiffs occasionally engage the birds in combat themselves to see if they have a fighting instinct. The trial court rendered a declaratory judgment, which stated that game cock fighting is prohibited under ORS 167.850 and ORS 167.860; ORS 167.860 is not unconstitutional because of the exceptions provided; and ORS 167.850 and ORS 167.860 are unconstitutional in that they provide different penalties for the same conduct. The trial court also issued an injunction against enforcement of these statutes against plaintiffs by defendants, the district attorney and the Attorney General for Oregon. Defendants appeal the portion of the declaratory judgment that declares ORS 167.850 and ORS 167.860 unconstitutional.
ISSUES: 1) Whether ORS 167.850 and ORS 167.860 are unconstitutional because they provide different penalties for the same conduct; 2) whether ORS 167.860 is unconstitutional because of the exception; 3) whether cockfighting is a practice of good livestock husbandry and so is exempt from the provisions of ORS 167.860; 4) whether cockfighting is prohibited by either ORS 167.850 or ORS 167.860.
HOLDING: 1) No, ORS 167.850 and ORS 167.860 are constitutional because they do not provide different penalties for the same offense; rather they differentiate penalties on the basis of the culpable mental state of the actor. Also, in some respects the acts prohibited are different. 2) No, the exception has a rational basis and is not grounds for declaring ORS 167.860 unconstitutional. 3) No, the practice of breeding birds suitable for cockfighting does not qualify as good livestock animal husbandry. 4) Yes, cockfighting is prohibited by both ORS 167.850 and ORS 167.860. The statutes specifically include birds as animals and are written in terms that prohibit cruel mistreatment. There is no basis for concluding that the legislature did not intend to include cockfighting.
Texas
McDonald v. State of Texas
64 S.W.3d 86
Court of Appeals of Texas, 2001
FACTS: McDonald stopped his van on the side of a road near an entrance to a hike and bike trail. He opened the back doors of the van, pulled out a black bag, and dropped it on the ground next to the van. A puppy came out of the bag and ran toward the trail. Two security guards witnessed these events, approached McDonald and told him to take the puppy with him. McDonald refused stating that the puppy was not his. An investigator concluded that McDonald found the puppy and intended to drive it to a remote area to abandon it. McDonald was found guilty of cruelty to animals under section 42.09(a)(3) of the Texas Penal Code. The State and Defense agreed that McDonald would spend 50 days in the Travis County Jail. McDonald appealed and the Court affirmed the judgment of the trial court
ISSUES: Whether the evidence was factually sufficient to support a finding that McDonald had “custody” of the puppy or that his leaving the puppy at the trail was unreasonable under the terms of the statute; whether the evidence was factually insufficient to support the punishment; whether 50 days confinement is excessive in comparison to other animal abuse cases.
HOLDINGS:
1) Custody may be interpreted as guarding or keeping, or taking immediate charge and control; the term is elastic. It was reasonable for the jury to find that McDonald had custody of the puppy when he found it in the van and decided to leave it in a remote area.
2) Leaving a puppy in a greenbelt area without food or care was an unreasonable act. The jury’s finding that McDonald’s abandonment of the dog was unreasonable is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.
3) As long as a sentence is within the proper range of punishment, it will not be disturbed on appeal.