STATE v WALTER
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No. 94-178 IN THE SUPREME COURT OF THE STATE OF MONTANA 1994 STATE OF MONTANA, Plaintiff and Respondent, SEP 20 1994 VALENTINE ANTONE WALTER, Defendant and Appellant. APPEAL FROM: CLERKOFSUPREMECO RT STATE OF MONTANA District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable Douglas G. Harkin, Judge presiding. COUNSEL OF RECORD: For Appellant: Margaret L. Borg and Marcia M. Jacobson, Defender's Office, Missoula, Montana Public For Respondent: Hon. Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena, Montana: Robert L. Deschamps, III, Missoula County Attorney, Deputy Missoula County Attorney, Betty Wing, Missoula, Montana Submitted on Briefs: Decided: Filed: Clerk July 12, 1994 September 20, 1994 Justice James This is Missoula Walter, C. an There Was bench trial, three issues What case case? III. the trial. small On dogs, a dachshund, the March dogs to with her niece for a nap. Some mother Walter, went calling for (Walter) dog, Skeeter, she could defendant's the Missoula She trial, asked him Valentine We affirm. under precedent the § Sl-7- for the instant complaint filed BACKGROUND from testimony Ellis, door and Skeeter, for then had Stacey saw whether he by and a she had a a and her two She lie let down gunshot. heard appellant, seen at miniature to heard occurred the her visit. proceeded later, what presented accompanied house minutes ascertain dogs. Court, her Valentine little black and he reported to her that he had killed the dog and its property fence. to her and find the At outside justifiable mother's patio District animals. pomeranian, her Court. defendant, invalidating Stacey mother's She the to gleaned miniature drove her are the Judicial proper for 1993, black, Miley, out 7, dog provides facts of appeal: FACTUAL following Fourth finding on Is there a basis against Walter? The Opinion cruelty of law the a misdemeanor the shooting MCA? 401, II. from of are delivered appeal County, guilty I. Nelson took County Walter body and her by the fence. found her dog's dog back to Sheriff's that body on parents' walked a onto woodpile house and the near called Office. testified her She 2 at about 2:30 or 3:00 on March 7, 1993, he his sheep not in saw the and retrieved the dog the still and stated that the pen. He the of the camper going not on find animals dog. count on An was March 31, amended by 1993, complaint of misdemeanor labrador retriever. Missoula County, cruelty In Walter a was He ground that and where that he point area. testified see a he further footprints in the area of the dogs had been in camper. that not the sheep sheep pen area. BACKGROUND complaint for with the charged to tracks testified to the from he was could 100 that feet the there was but He incident, could McNeal 120 harm that there running died. the stated that fence. County, about he house saw start had Missoula home. the the was When would mother home to him charged its up PROCEDURAL Walter dog area any told the an approximately it along to beyond saw near lamb outside, ran Ellis the the into it went tracks was defendant snow went then for Walter's he that sheriff the property. his returned barn, because dog on He fearful to black that lamb, as small, stated still dog frail fenceline tracks could was around the sheep deputy amount was a He small the summoned found shotgun. shot a area that any but the he and lamb. the somewhat was along locate but was fair heading near that the a pen 20-gauge McNeal, inspected small his he home chasing fence when a sheep still which his dog stated Joe He actual was to chasing black further that pen the toward lamb, returned shooting the animals proceeding found 3 misdemeanor in defendant the before guilty of of count with a of Justice I to small, black the shooting the cruelty - second a black Court of cruelty to animals in the shooting of Skeeter and not guilty of count II cruelty to animals in the shooting of the labrador retriever. Walter appealed on September 13, 1993, to the District Court of the Fourth Judicial District. The District Court found Walter guilty in a trial de nova on January 10, 1994, after a bench trial on November 16, 1993. Walter appealed the District Court's February 7, 1994 judgment on March 3, 1994. I. JUSTIFIABLE SHOOTING OF DOG The State prosecuted Walter under § 45-8-211, MCA, which provides: Cruelty to animals - exception. (1) A person commits the offense of animals if without cruelty to justification he knowingly or negligently subjects an animal to mistreatment or neglect by: (a) . . .killinq an animal. Walter admits that he shot the dog but contends that his actions were justified because the animal was harassing his sheep. He argues that the killing of the dog was justified under § Sl-7401, MCA, because "Walter's sheep had been the victims of numerous attacks by neighborhood dogs" and he was acting under the "reasonable appearance of things;" that if he allowed the dog to leave his premises, it would return another day to harm his sheep. The State argues that Skeeter was not engaged in any of the conduct described in § 81-7-401, MCA. Section 81-7-401, MCA (1991), provides as follows: Killing of dogs destroying or injuring stock - notice to owner. Any dog, whether licensed or not, which, while off the premises owned or under control of its owner, shall kill, wound, or injure any livestock not belonging to the master of such dog shall be deemed to be a public nuisance and may be killed forthwith by any person, or 4 the owner, when notified, shall kill such dog within 24 hours, and if he fails to do so, an officer may be notified and shall kill or cause to be killed such dog. Nothing contained herein shall apply to any dog acting under the direction of its master or the agents or employees of such master. Walter !j argued 81-7-401, cited § October that MCA lower the (1993), did not the incident at 1993 the of statute § version which 81-7-401, of be livestock...." Section worries, MCA, killed MCA (1993). killing of any livestock;" the the a The dog by the sheep pen by MCA, the livestock...." version and so when of the black he is Section he drove dog went was statute chasing into his his one injures of or house, the 81-7- as MCA his for iniurers] conduct (1991). driveway of part provides listed 81-7-401, into or Section Q& dog. 7, "'[Hlarasses' (1993). sheep a March owner of small, the wounds, harassment of Until pertinent woundrsl, saw he in "killrsl, that 1993, states it killing (1993). applied been if testified 7, on the The effect occurred kills, after 1991 into and is above. immediately runs & go cited 81-7-401(2), chases, or the Walter statute. have MCA, dog...that...harasses, justifying the should 81-7-401, MCA, § under applied State issue livestock...may 401(1), 5 MCA and be the of was dog 81-7-401, version court the to Walter, 81-7-401, "[al means wrong killing statute (1991)), in version The correct the Therefore, 1991 the in 1993, of 1993. justified applied applied However, was 81-7-401, Court statute the (5 he Although MCA. above District that on March lambs back returned outside with a 20-gauge shotgun and shot the dog as it ran along the fence. Under the 1993 version of the statute, 5 if proven at trial, the dog would have been "harassing II the small lamb and the defendant could have been justified in shooting the dog. statute, However, the applicable the 1991 version of 5 81-7-401, MCA, does not include "harassment" in the list of conduct for which a livestock owner is justified in shooting a dog. At any rate, there is testimony from a State witness, a disinterested deputy sheriff, stating that the dog was not even in an area where he could have harassed, injured, wounded, or killed any sheep. The District Court found this State's witness' testimony to be more credible than that of the appellant. "The weight of the evidence and the credibility of the witnesses are exclusively within the province of the trier of fact: when the evidence prevail." conflicts, the trier of fact determines which shall State v. Bower (1992), 254 Mont. 1, 8, 833 P.2d 1106, 1111. There was sufficient evidence for the District Court to determine that the dog was not in the process of killing, wounding or injuring livestock at the time he was shot, which is the conduct which must be proven to justify the shooting of the dog under § 817-401, MCA (1991). Officer McLean testified that the area where he found footprints of the two dogs was about loo-120 feet from the sheep pen. He further testified that he did not see any tracks beyond that point but he would have been able to see them if there were any to be found. Finally, he stated that he did not see any footprints in the area of the sheep pen. Walter, himself, provided no evidence that the dog had injured, wounded, or killed a lamb or 6 sheep. Under or (1993)) that either the 5 judgment MCA. used Mont. harassing, the the not conclude though will 402, the result Higham P.2d justified 196. cruelty to animals shooting the dog APPLICABLE P.2d 982, instant the He of statute Montana cases chickens and that in the law but had v. guidance CASE Chagnon for this under here. He further contends instant 81-7-401, the reasoning of Granier discuss the coop" that onto Court decided in § its 247 We hold Walter was was not he his (1949), was "dog in property. LAW it dogs err omitted.) entered and involving killing because that issue or of determining asserts sheep at who Granier provides case. harassment that evidence not did (Citation in argues MCA, v. City of Red Lodge (1991), err Walter 203 wounding regardless not in did 81-7-401, version misdemeanor of Court 195, wrong § sufficient Court II. guilty District District correct a is injuring, applied court." 807 the statute, there (1991), that it affirm lower 400, that was even by the MCA We "We of 81-7-401, dog livestock. application is deciding the involving the an case, statutory law, that Walter "proposes 327, case a are Mont. in earlier version of the other two between dogs and that altercations cases 122 decided not under common common law, is applicable. The allow an sheep injures State owner are counters of kept, livestock whether livestock."' to shoot the dog 'harasses, argues that It 7 any dog a seen rule on that would property where kills, this is wounds, beyond or the justification provided in the statute and is a departure from Granier, the only "dog in the flock" case in Montana. The three cases cited by both parties are Trenka v. Moos (1946)) Sunsted 118 Mont. 607, 168 P.2d 837; Granier; and Grabenstein v. (1989), Grabenstein 237 Mont. 254, 772 P.2d 865. Trenka and involved the shooting of dogs that were killing chickens while Granier involved the shooting of a dog which was caught feeding on a freshly killed sheep. The "dog in the coop" cases are decided under the rule of common law that: . . . to justify the killing of a dog in defense of property there must be an apparent necessity for the defense, honestly believed to be real, and the acts of defense must in themselves be reasonable, or in other words, it is necessary to show that the danger from its attack was imminent at the time, and that the injury could not otherwise have been prevented. Grabenstein, 772 P.2d at 866. "Dog in the flock" cases, however, are decided under statutory law. Granier, 203 P.2d at 988. were considered to be "livestock" and therefore, Sheep covered by the provisions of 3417.15, R.C.M. 1935 (now retitled § 81-7-401, MCA.) Granier, 203 P.Zd at 988. In the instant case, Walter's sheep are considered to be livestock and are covered by § 81-7-401, MCA. Granier interprets this very same statute and is therefore, proper precedent for the instant case. In Granier, Waldwinkel, William and Paul Chagnon discovered Jerry V. a German short-haired pointer and his companion, a yellow spotted fox terrier, pasture. on a freshly killed sheep in their They had been alerted to trouble in the pasture when a number of their sheep came rushing to the barnyard area, including one severely plagued by marauders injured raids that The on had their killed Granier The sheep. Court 16 sheep to had at the of been paws head 18 concluded Chagnons of previously unidentified sheep. that: [Pllaintiff's dog was caught red-footed and redfanged, in Leon Chagnon's sheep pasture, tearing and chewing on one of Chagnon's ewes still bleeding and warm, and that another of Chagnon's sheep,-her belly ripped-her face practically torn off,-had just escaped a like fate by running to the barn with the remainder of the flock. Loss of some sixteen or eighteen sheep to unidentified raiders had most recently been suffered, and defendant was authorized to act forthwith on what he witnessed in the Chagnon sheep pasture on the afternoon of June 8, 1947. The law accords him "the right to act on the reasonable appearance of things." Granier, 203 P.2d from Granier. disinterested In the witness This at 988. instant that case case, the dog's is easily there was footprints distinguishable testimony were from found 100 a to 120 feet from the sheep pen so it could not have even chased a lamb in the area of the sheep pen. Further, no to establish injured, or sheep. there Even was shooting Walter things" no of the cruelty the dog not to animals under his Walter Court a argued that wounded recently which that correctly trial killed a number warrant reasonable the any of a lambs sheep, justifiable Granier, appearance statute and justified in found Walter guilty de presented Under (1991). not principles shooting of of Skeeter misdemeanor nova. INVALIDATION Stacey "the Under was MCA was or lost would 81-7-401, actions. III. Walter 5 establish in had presented Granier, District had Walter evidence justified in dog though the could enunciated and that testimony OF Ellis' 9 COMPLAINT own actions set into motion the events contends for which that this of was not and signed the MCA. party by a challenged at the raised for Moreover, subsections the (a) District the none through is State. first of the (c) of court without been The County being not be The State time made on AFFIRMED. Chi&f Justicd/ 10 hands based counters and on the that Ellis was filed complaint for Moreover, the He time first the on considered. This of to the Court appeal. exceptions 5 Skeeter. clean Attorney. validity Court. of dismissed complaint: the Deputy should shooting have the argument the the fairness. Missoula with to should signed therefore, agree issue case who led before fundamental and We an came asserts, this appeal, not Ellis reason, the principle State ultimately will See 5 this 46-20-701(2), complaint address 46-20-701(2), rule, MCA, not was listed apply. in
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