The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1859-09-10
IMPORTANT TO OWNERS OF DoGs.'


Before Judge Russell
SEfr 9Soon after the opening of the court this morn
ing, the City Judge rendered the following interesnu
decision a motion to quash indictment against Dem
mis- Campbell for the alleged larceny Of valuable New
foundland dog
The Peopse vs Dennis CamSSeu-The defendant
indicted at the last March term Of this Court for
value of $50 and collar OF the value of 81 the proper
ty OF Jcronomaus s. Underhif demurrer the ndct-
ground that the stealing Of dog was not an offence by
the laws Of this State Accompanying the indictment
stipulation that be considered alleging that the dog
in question was reclaimed and made tame and domestic;
and that the defendant knowing to be such fconousiy
took and carried away and further that the averment
indictment theft the collar be deemed
TO have been omitted. The object present the
question though the indictment had been framed upon
the simple feonous taking of the dog. 1t s impossible
for the Court consider this stipulation In deciding the
question to whether dog is property be the
the subject of such offence the indictment would
stand for tho collar, which would make II in effect in
dc,ment petit larceny If it should be determined
and e cannot support the charge Of stcalng
the collar then, OF COURSE the District Attorney would
mol the Indictment NO stipulation OF this character
can affect the structure OF the indictment emanated
the Grand Jury The charge as made being felony,
the constitution of this State requiring the presenment or
the pleading they file with the Court could be remodelled
by stipuaons between the counsel the defendant would
tried upon the presentment of the Grand jury but
rather upon the consent Of the counsel
This Court cannot acquire jurisdiction 10 try an offence
by consent can its jurisdiction over an offence be
changed by consent so to embrace any other than
that presented by the Grand Jury where the action OF
that body requisite. II the form Of an indictment does
suit prosecuting officer his only remedy Is by REIN
dieting On the trial Of Indictment certain omissions
be disregardcd by the Court e r. s. 72S, 862 but
unless the power conferred by statute warranted
by the acknowledged rules Of pleading, the Court not
vested with IT, The right docs not extend TO adding TO
expunging from the Indictment substantial allegations
In the Of Cancemi the People as N. Y. r. 1887
in which held that prisoner could not consent TO
tried less than the constitutional number (twelvel
af ho the udy If
Court of Appeals, this language"There Is obvious
ly wide and important distinction between civil suits
fendant to waive strict substantial adherence TO the es
tablshed constitutional statutory and common aw mode
ment constitutional mode OF proceeding, within the
principle this remark and the defendant can waive
legal right by consent he may give in reference 70 ts
have concluded pass upon the question presented,
and which was argued with ability on both sides ior the
being one for grand or petit larceny:
At the common law larceny could be committed Of do
mestc cale e. sheep oxen horses, &C ;or OF domestic
owls- e., hens, ducks geese, &c; BECAUSE according
to Lord Hale, they under propiety," and served
for food So TO beasts or birds rG ndtnrG, which
were reclaimed and made tame domestic, and served
for food-i G., deers pbeasans, partridges &c, the
as 10 some things whereof the owner might have awfdl
property and such whereupon he might maintain an ac-
ton Of trespass-s e., maStis spanes greynonnas, G ,
ness their nature Of some things wild by nature,
yet reclaimed by art or industry bears foxes fer
substance M in East, P sos-sl4 except e dogs be-
cause when this author wrote the statute 10 Geo ID
was in force making the stealing Of dogs punishable upon
conviction before two Justices Blackstone repeats the
same OF al sasn and oher for and
pleasure, though man may have sort Of lease property
therein and maintain civ action 1er ane @ loss e ot
stealing them amounts to larceny" this author
% p ,hs that value Of sS d %ron s1Sa
taken it is difficult TO why they were not within the
protection of criminal law at the time he wrote Will
be observed too that instead Of using the term base
ness connection with the nature Of dogs he uses TO
stamp the kind Of property which can be possessed or en-
joyed in them.
As such parts of the law formed the law Of
the colony Of New York the 18th day Of April 177o,
have been retained by the constitution Of this State sub
jec the power of the Legislature TO alter them (const
art l. ID and dogs were not the subject OF lar
slider whether the Legislature has altered the common
law in this particular AT common law the only descrp-
on Of property which could be the subject OF larceny
Things savoring Of the realty and written Instruments
added BY statutes % ghs People vs. ,s Den
larceny further than the English statutes did o BY the
2R 8, e7e, sec a6s i is provided that amy person who
shall be convicted of the fcionious taking and carrying
away the personal property Of another of the value Of
more than twenty five dollars shall be s,ged guilty Of
defined by subsequent section e r. S. 7o2 sec 33)
to goods chattels effects, evidences of rights in
action and all written Instruments" &C..
Sections CA 65 increase the offence if committed in a
dwelling house, or 10 ship or other vessel or com
d init by Of anoSer section s ees to Se
offence of severing produce srom the soil Of
another, property from the building Of another, to
the value of than twenty five dolars-which was
not larceny at the law Sections 66 and 81
intended rather be rules of evidence than TO serve to
create designate any distinct offences They relate to
written Instruments bonds, covenants notes, bills
of exchange drafts orders receipts lottery tickets &C.
and provide for ascertanng the value of such securities
or declare what shall be their value, stolen, consd
cred the subjects of larceny They commence thus:
sIf the property stolen consist OF any,, &c; showing
perty Within section &c. Section 60 relates to the stealing
Of the records &C., of courts of justice Since the Re-
ysed Statutes went into operation the Legislature have
made the offence of stealing railroad passenger tickets,
before the sale thereof before being issued TO the
agents Of companies for SALE the subject Of larceny
(3 R. s. 5th ed, $50, 96O, 49, 10, I'D This anew
crime and would not have been the subject OF larceny
under the People ys Looris cited above. AS the law
stood these tickets would have had no value until hey
had been issued by their respective companies:
AS understand section 60 of the Statutes, 1t meant 10
sonal property and declare that everything which s
personal property, which be, is held or enjoyed
ute It appears as though the Legislature, instead
of entering upon minute statemens OF tne
q species pe that
this section should be construed in the most comprehen-
sve manner 1t is not more indefinite than Is tnat sun
more comprehensive provision Of the constitution Of this
State that no person shall be dprived Of fc liberty or
property without due process Of law" the meaning Of
the term stproperty be ascertaned IN the latter
case the meaning Of the terms persona property" GER
taiDy can be in the former
This provision Of the constitution underwent luucaf
consideration in the OF Wynehaner the People,
Kern 37S That case will be remembered as involving
the consutionaty of the late law to prevent inempe
this State the Court Of Appeals deciding against
the law Comsock j., in his opinion page ss6 uses tns
anguage-"Now can form no notion Of property whcn
does not include the essential characteristics and atrS
butes with which is clothed by the laws Of society In
state Of nature property did not exist at all Every man
might then take to his what he pleased and retain III,
If he had sufficient power but when entered into So
cey and industry arts and sciences We're introduced,
property was gained by various means for the occurring
whereof proper laws were ordained" Tomhn' Law Dc'
Property, Bl. Com. &c. =. A.. .
ssMatcral Objects therefore are property IN tne true
because they arc impressed the laws and usages
Of society with certain qualities w or S oxnsr a.
nsa ani ant,v them exclusively, and his ab-
sell and dis dispose seoal ct 'hs ana
S ,,so puaiites upcn material things, 30 whatever
s the impression destroys the notion Of property, al
though the things themselves may remain physically un
touchcd.r