majority"> Clarkson, J.

At the close of the State’s evidence and at the close of all the evidence, the defendant made motions for judgment of nonsuit. *214 C. S., 4643. The court below overruled these motions, and in this we can see no error. These were the only material exceptions and assignments of error.

The defendant was tried and convicted on the following two ordinances of the city of Henderson, N. C.:

“Chapter 7- — Dogs: Sec. 68. If the owner of any vicious or dangerous dog shall allow the same to run at large, he shall pay a penalty of fifty dollars.

Section 69. That it shall be unlawful for any person to suffer or permit a bulldog, bull-terrier or other dog of known or vicious tendencies, to be at large within the city without being muzzled. In addition to the penalty provided by the ordinance for violation of this ordinance, it shall be the duty of the police to seize and impound any such dog-found at large without a muzzle, and unless it be claimed and impounding fee of one dollar be paid within three days for the policeman making-such seizure, such dog shall be killed.”

In S. v. Abernathy, 190 N. C., at p. 771, we find: “It is provided by C. S., 4174, that if any person shall violate an ordinance of a city or town, he shall be guilty of a misdemeanor, and shall be fined not exceeding fifty dollars, or imprisoned not 'exceeding thirty days. It is this statute which makes the violation of the present ordinance a misdemeanor, and not the ordinance itself. S. v. Taylor, 133 N. C., 755.”

The brief of the defendant says: “Both of the foregoing sections were introduced in evidence by the State in this action, and said sections were admitted to be valid town ordinances by the defendant through her counsel.”

The U. S. Supreme Court, in Sentell v. New Orleans & C. R. Co., 166 U. S., sec. 701, at p. 1170-1, has this to say about dogs: While the higher breeds rank among the noblest representatives of the animal kingdom, and are justly esteemed for their intelligence, sagacity, fidelity, watchfulness, affection and above all, for their natural companionship, with man, others are afflicted with such serious infirmities of temper as to be little better than a public nuisance. All are more or less subject to attacks of hydrophobic madness. . . . Acting upon the principle that there is but a qualified property in them, and that, while private interests require that the valuable one shall be protected, public interests demand that the worthless shall be exterminated, they have, from time immemorial, been considered as holding their lives at the will of the legislature, and properly falling within the police powers of the several states.” Bugai v. Rickert, 242 N. W. Rep. (Mich.), 774. 19 R. C. L., p. 822, sec. 126; 8 A. L. R., p. 74; Mowery v. Salisbury, 82 N. C., 175; *215 S. v. Clifton, 152 N. C., 800, cited and annotated in 28 L. R. A. (N. S.), p. 673; see S. v. Smith, 156 N. C., 628.

In Vol. 3 (2d ed.), sec. 1001, McQuillan on Municipal Corporations, is found, tbe law in regard to tbe Regulation of Dogs, as follows: “To safeguard and promote tbe public bealtb, safety and convenience municipal power to regulate tbe keeping and licensing of dogs witbin tbe corporate area is generally recognized. Accordingly ordinances regulating dogs and requiring tbem to be registered and licensed, and at times muzzled and prevented from going at large, are witbin tbe police powers usually conferred upon tbe local corporation. Sucb ordinances are authorized by virtue of general powers and tbe usual general welfare clause. Thus power to protect life, bealtb and property authorizes an ordinance requiring owners of dogs, under penalty, to muzzle tbem, or keep tbem on their own premises, and directing tbe marshal to kill all dogs found running at large. An ordinance authorizing tbe mayor, whenever be may apprehend danger of tbe existence or spread of hydrophobia to issue a proclamation requiring all owners of dogs to confine or muzzle tbem is not invalid as a delegation of legislative power to an executive officer.” Under this law it was unquestionably legal for tbe good dog “Tray” to be chastised for being in tbe company of tbe bad dog “Tiger.”

Whatever may be one’s individual view in regard to dogs, tbe law is well settled, as conceded by defendant. Tbe sole question then — was there enough evidence to be submitted to tbe jury that tbe dog in question belonged to defendant and was a bad dog in tbe purview of tbe ordinance? We think so.

Tbe competency, admissibility and sufficiency of tbe evidence is for tbe court to determine; tbe weight, effect and credibility is for tbe jury.

“Tbe Supreme Court shall have jurisdiction to review, upon appeal, any decision of tbe courts below, upon any matter of law or legal inference,” etc. Const., of N. C., Art. IY, sec. 8.

On motion to dismiss or judgment of nonsuit, tbe evidence is to be taken in tbe light most favorable to tbe State, and it is entitled to tbe benefit of every reasonable intendment upon tbe evidence and every reasonable inference to be drawn therefrom.

Tbe accusations against defendant were (1) that defendant did on or about 22 June, 1931, unlawfully and wilfully allow a vicious (or) and dangerous dog to run at large: (2) did suffer and permit a vicious (or) and dangerous dog, known to tbe said defendant to be of a vicious and dangerous tendency to be at large witbin tbe city of Henderson, without being muzzled. Tbe evidence to sustain both tbe accusations, set forth above, was plenary to have been submitted to tbe jury — (1) tbe identity *216 of tbe dog; (2) tbe ownership in defendant; (3) tbe same dog that bad bitten Mrs. Wells and boy, indicating that tbe dog was vicious or dangerous; (4) tbe dog was off defendant’s premises and at large; (5) tbe dog was not muzzled.

Tbe charge of tbe court below is not in tbe record, tbe presumption is that tbe charge of tbe court was correct and tbe court below properly applied tbe law applicable to tbe facts in tbe case. It is for tbe jury, and not for us, to pass on tbe evidence. Tbe jury has found defendant guilty, in law we find

No error.

Citation profile

How this case has been treated — in progress