#### STATE v. ELIZABETH HARRELL.

(Filed 21 September, 1932.)

1. Municipal Corporations H <1 — Ordinance i*elating to dogs held valid exercise of police power.

An ordinance of a city providing that a certain species of dog, or dogs of vicious tendencies shall be muzzled by the owners or kept upon the premises or not permitted to run at large within the corporate limits falls within the police powers of the city regarding the safety and health of its citizens, and is a valid abrogation of the rights of the owners in property of this character.

2. Municipal Corporations H e — Evidence of violation of city ordinance held sufficient to overrule motion of nonsuit.

Evidence tending to show that a certain dog was owned by the defendant and that it had attacked and bitten several persons to the knowledge *211of the owner, including an attack upon the child of the prosecutrix, is sufficient to resist a motion as of nonsuit in an action under an ordinance of a city prohibiting vicious dogs to run at large within the city limits without being muzzled.

3. Criminal Haw Ih: L e — Weight of evidence in criminal action is for jury and on appeal only matters of law or legal inference may be reviewed.

The competency, admissibility and sufficiency of the evidence in a criminal action is for the court, the weight, effect and credibility is for the jury, and on appeal the Supreme Court can review only matters of law or legal inference. Constitution, Art. IV, sec. 8.

4. Criminal Law L d — Where charge does not appear in record it is presumed correct.

When the charge of the judge of the Superior Court is not made to appear in the record on appeal the presumption is that the court correctly charged the law arising on the evidence.

xIppeal by defendant from *Grady, J.,*and a jury, at March Term, 1932, of VaNCE.

No error.

Upon the following warrant, the defendant was tried in the city of Henderson Municipal Court: “That at and in said county, and in the city of Henderson (or within one mile thereof), on or about 22 June, 1931, Miss Elizabeth Harrell did unlawfully and wilfully allow a vicious and dangerous dog to run at large, said vicious and dangerous dog did attack Margaret Brinkley on Harrell Street in the city of Henderson. And did unlawfully and wilfully, suffer and permit a vicious and dangerous dog known to the said Elizabeth Harrell to be of vicious and dangerous tendency to be at large within the city of Henderson without being muzzled, in violation of the ordinance of the city of Henderson, and against the form of the statute in such cases made and provided, and contrary to law and against the peace and dignity of the State.”

The record discloses: “Warrant returned 25 June, 1931, executed, and the following proceedings had: defendant appearing in person and pleading not guilty. After hearing the evidence, and it appearing to the court that the defendant is guilty, it is considered and adjudged by the court that defendant, Elizabeth Harrell, pay a fine of $5.00 and the costs of this action, viz.: $12.50. Notice of appeal was duly given. Appeal bond fixed at $25.00 for her appearance at the next term of Vance Superior Court to answer said charge. This 25 June, 1931. Irvine B. Watkins, Mayor.”

The defendant was tried before the Hon. Henry A. Grady, judge, and a jury, at the March Term, 1932, of the Superior Court of Vance County, upon an appeal from the mayor’s court of the city of Henderson. The defendant was charged with a violation of ordinances of the *212city of Henderson in respect to vicious and dangerous dogs. Tbe jury returned a verdict of guilty. Tbe sentence of tbe court was: “Judgment suspended upon payment of costs.” Tbe defendant made several exceptions and assignments of error and appealed to tbe SuiDreme Court — tbe material ones will be considered in tbe opinion.

Tbe evidence was to tbe effect that Margaret Brinkley, a young girl about 16 years of age, lived in tbe city of Henderson, N. C., across tbe street from defendant. Tbat on 22 June, 1931, sbe started across tbe street. “After I got on tbe curbing *a dog came from Miss Harrell’s yard,*and was barking and carrying on so, it almost scared me to death. Tbe dog tbat ran out of ber yard on tbat day *was a white dog with some brown spots,*I tbink. It was a middle size dog. Tbe dog did not bite me. I tried to get back to my porcb. Mr. Capps was on tbe porcb across tbe street, and hollered to tbe dog and waved bis cane and frightened tbe dog. Tbe dog went on down tbe street. ... At different times I have seen at least twelve dogs in ber yard. I don’t know wbat kind of dogs they were.”

J. D. Capps testified, in part: “I hollered at tbe dog and be went away. I do not tbink tbe dog bad on a muzzle. *I have seen this dog at Miss Harrell’s,*but have not seen him since tbat day.”

Helen Wells, testified, in part: “A. I could not say to be exact, but I would say 10, 12 or maybe 15 dogs. *I lenow that Miss Harrell’s dogs bit me and bit my little boy.*Tbe dog tbat bit me was a white dog, and looked like it was part bull dog. When tbe dog bit me I was right by Central School, on my way borne. I could not say wbat day or month it was, but it was in warm weather; it was last summer. Tbe dog only stuck bis teeth in me one time, but tore my uniform and hose off of me. Two dogs jumped on me, and as well as I can remember, tbe white dog bad a long tail and tbe bull dog bad a short tail. Tbe bull dog bad brown spots. I *saw one of Miss Harrell’s dogs bite my little boy right in front of Mrs. Brinlcley’s house.*Tbat dog was not muzzled and tbe dogs tbat attacked me were not muzzled. Shag and one of tbe same dogs tbat attacked me attacked my child. Shag is just an ordinary black, shaggy dog. My boy was bit before I was.” It is admitted tbat tbe matter testified to by this witness were brought up in a former trial wherein tbe defendant was prosecuted under tbe same ordinance, and tbat there was a conviction and no appeal.

E. T. Shepherd, testified, in part: “As we were going to Mr. Brinkley’s *this white and brown dog*ran across tbe street, and I ran up on tbe porcb. Miss Brinkley said it was tbe same dog tbat ran after her. . . . Tbe dog was loose in tbe street without a muzzle. . . . Tbe dog came from Miss Harrell’s yard.”

*213Mayor Irvine B. Watkins, testified, in part: “Miss Harrell bas talked to me so many times about this matter I could not give her exact language. *In these conversations she has admitted that the dog that attacked Miss Brinkley was the same one that attacked Mrs. Wells and her child.*At first she denied the ownership of the white dog, and then said she had owned him six months, and had taken him to a doctor in Ealeigh, and that now she had disposed of him. I asked her what right she had to dispose of him, and she disposed of him after he bit this child. *That was the white dog.”*

The defendant testified, her testimony was negative, in regard to what she told Mayor Watkins. “I do not think I told Mayor Watkins that it was the same dog that bit Mrs. Wells and her child.” The record discloses that the defendant’s general reputation is good.

Britt Grissom testified, in part: “I did live on Harrell Street, one house between Miss Harrell’s house and mine. . . . Q. Tell what

you know about two dogs of Miss Harrell’s and your children in May or June of last year? A. I was at breakfast one morning, and my children were playing in the yard. Two dogs came over and tried to attack them. *One was a ivhite dog with one or two hrown spots,*and another dog. The children ran up in the porch and I ran out in the yard and ran them off. I wont back to finish eating my breakfast and the dogs started back again. The children were screaming, and I would have shot the dog but there was someone in front and I was afraid I would shoot them instead of the dog. I had some conversation with Miss Harrell about the dogs before Miss Brinkley was attacked. *I sato the white dog with the spots on the street practically every day.*They ran at large up until we had the hearing in the magistrate’s court. *The dogs were not muzzled when they ran at large.”*

H. B. Harris, testified, in part: *"I saw the dog that ran after Miss Brinkley; it was a dog that Miss Harrell claimed, one that was called her dog. The dog that hit the Wells child was the same dog that ran after the Brinkley girl.*I did not see the dog that bit Mrs. Wells. *1 saw this same dog on the street three or four times after the Wells child was hit.*When I saw the dog he was in Miss Harrell’s yard, or on the sidewalk not far from the house. *He did not have a muzzle on.”*

*Attorney-General Brummitt and Assistant Attorney-General Seawall for the State.*

*H. B. Harrell, Jr., for defendant.*

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. *214C. 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 *216of 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.