State v. Walter , 51 State Rptr. 903 ( 1994 )

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. CLERKOFSUPREMECO”RT
STATE OF MONTANA
APPEAL FROM: 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, Public
Defender's Office, Missoula, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Jennifer
Anders, Assistant Attorney General, Helena, Montana:
Robert L. Deschamps, III, Missoula County Attorney,
Betty Wing, Deputy Missoula County Attorney,
Missoula, Montana
Submitted on Briefs: July 12, 1994
Decided: September 20, 1994
Filed:
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
This is an appeal from a Fourth Judicial District Court,
Missoula County, bench trial, finding the defendant, Valentine
Walter, guilty of misdemeanor cruelty to animals. We affirm.
There are three issues on appeal:
I. Was the shooting of the dog justifiable under § Sl-7-
401, MCA?
II. What case law provides proper precedent for the instant
case?
III. Is there a basis for invalidating the complaint filed
against Walter?
FACTUAL BACKGROUND
The following facts are gleaned from testimony presented at
trial. On March 7, 1993, Stacey Ellis, accompanied by her two
small dogs, a black, miniature pomeranian, Skeeter, and a miniature
dachshund, Miley, drove to her mother's house for a visit. She let
the dogs out her mother's patio door and then proceeded to lie down
with her niece for a nap. Some minutes later, she heard a gunshot.
She went outside to ascertain what had occurred and heard her
mother calling for her dogs. Stacey saw the appellant, Valentine
Walter, (Walter) and asked him whether he had seen her little black
dog, Skeeter, and he reported to her that he had killed the dog and
she could find its body by the fence. She walked onto the
defendant's property and found her dog's body on a woodpile near
the fence. She took her dog back to her parents' house and called
the Missoula County Sheriff's Office.
At trial, Walter testified that at about 2:30 or 3:00 on March
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7, 1993, he returned to his home and found a small, black dog near
his sheep pen chasing a small lamb. He stated that the lamb was
not in the actual sheep pen but was still on his property. When he
saw the black dog chasing the small lamb, he went into the house
and retrieved his 20-gauge shotgun. He returned outside, saw that
the dog was still near the sheep barn, then saw it start running
toward the fence and shot the dog as it ran along the fence. He
further stated that he was fearful that the dog would harm the
lamb, which was somewhat frail because its mother had died.
Joe McNeal, a deputy sheriff for Missoula County, testified
that when he was summoned to the Ellis home about the incident, he
inspected the area around Walter's home. He stated that there was
still a fair amount of snow on the ground and he could see tracks
heading along the fenceline to an area where there was a camper.
He stated that the tracks went up to that point but he could not
locate any tracks going beyond that area. McNeal further testified
that the camper was approximately 100 to 120 feet from the sheep
pen. He could not find any footprints in the area of the sheep pen
but the defendant told him that the dogs had been in that area.
PROCEDURAL BACKGROUND
Walter was charged by complaint with misdemeanor cruelty to
animals on March 31, 1993, for the shooting of the small, black
dog. An amended complaint charged the defendant with a second
count of misdemeanor cruelty to animals in the shooting of a black
labrador retriever. In a proceeding before the Justice Court of
Missoula County, Walter was found guilty of count I - cruelty to
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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 cruelty to animals if without
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-7-
401, 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
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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 argued that he was justified in killing the dog under
!j 81-7-401, MCA. Although the correct statute to be applied is
cited above (5 81-7-401, MCA (1991)), Walter, the State and the
District Court applied the wrong version of the statute. The
statute applied in the lower court was 5 81-7-401, MCA (1993).
However, § 81-7-401, MCA (1993), did not go into effect Until
October of 1993, and the incident at issue occurred on March 7,
1993. Therefore, the statute which should have been applied was
the 1991 version of § 81-7-401, MCA, cited above.
The 1993 version of § 81-7-401, MCA, states in pertinent part
that "[al dog...that...harasses, kills, wounds, or injures
livestock...may be killed immediately by the owner of the
livestock...." Section 81-7-401(2), MCA, (1993). "'[Hlarasses'
means worries, chases, or runs after livestock...." Section 81-7-
401(1), MCA, (1993). The 1991 version of the statute provides for
the killing of a dog & if it "killrsl, woundrsl, or iniurers]
any livestock;" the harassment of sheep is Q& listed as conduct
justifying the killing of a dog. Section 81-7-401, MCA (1991).
Walter testified that when he drove into his driveway on March
7, 1993, he saw the small, black dog chasing one of his lambs back
by the sheep pen and so he went into his house, returned outside
with a 20-gauge shotgun and shot the dog as it ran along the fence.
Under the 1993 version of the statute, if proven at trial, the dog
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would have been "harassing II the small lamb and the defendant could
have been justified in shooting the dog. However, the applicable
statute, 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 conflicts, the trier of fact determines which shall
prevail." 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 § 81-
7-401, 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
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sheep.
Under either application of the statute, § 81-7-401, MCA,
(1993)) or 5 81-7-401, MCA (1991), there is sufficient evidence
that the dog was not harassing, injuring, wounding or killing
livestock. We conclude that the District Court did not err in its
judgment even though it applied the wrong version of § 81-7-401,
MCA. "We will affirm a correct result regardless of the reasoning
used by the lower court." Higham v. City of Red Lodge (1991), 247
Mont. 400, 402, 807 P.2d 195, 196. (Citation omitted.) We hold
that the District Court did not err in determining that Walter was
guilty of misdemeanor cruelty to animals because he was not
justified in shooting the dog who had entered onto his property.
II. APPLICABLE CASE LAW
Walter argues that Granier v. Chagnon (1949), 122 Mont. 327,
203 P.2d 982, provides guidance for this Court in deciding the
instant case. He asserts that Granier is a case involving the
harassment of sheep and it was decided under an earlier version of
the statute at issue here. He further contends that the other two
Montana cases involving dogs discuss altercations between dogs and
chickens and that "dog in the coop" cases are decided under common
law but in the instant case, statutory law, not common law, is
applicable.
The State counters that Walter "proposes a rule that would
allow an owner of livestock to shoot any dog seen on property where
sheep are kept, whether the dog 'harasses, kills, wounds, or
injures livestock."' It argues that this is beyond the
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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)) 118 Mont. 607, 168 P.2d 837; Granier; and Grabenstein v.
Sunsted (1989), 237 Mont. 254, 772 P.2d 865. Trenka and
Grabenstein 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. Sheep
were considered to be "livestock" and therefore, 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, William and Paul Chagnon discovered Jerry V.
Waldwinkel, a German short-haired pointer and his companion, a
yellow spotted fox terrier, on a freshly killed sheep in their
pasture. They had been alerted to trouble in the pasture when a
number of their sheep came rushing to the barnyard area, including
one severely injured sheep. The Chagnons had been previously
plagued by raids on their sheep at the paws of unidentified
marauders that had killed 16 to 18 head of sheep.
The Granier Court concluded that:
[Pllaintiff's dog was caught red-footed and red-
fanged, 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 at 988. This case is easily distinguishable
from Granier. In the instant case, there was testimony from a
disinterested witness that the dog's footprints were found 100 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 testimony was presented
to establish that the dog had injured, wounded or killed any lambs
or sheep. Even though Walter had recently lost a number of sheep,
there was no evidence presented which would warrant a justifiable
shooting of the dog under 5 81-7-401, MCA (1991). Under Granier,
Walter could not establish that "the reasonable appearance of
things" justified his actions. Under the statute and principles
enunciated in Granier, Walter was not justified in shooting Skeeter
and the District Court correctly found Walter guilty of misdemeanor
cruelty to animals in a trial de nova.
III. INVALIDATION OF COMPLAINT
Walter argued that Stacey Ellis' own actions set into motion
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the events which ultimately led to the shooting of Skeeter. He
contends that Ellis came before the court without clean hands and
for this reason, the case should have been dismissed based on the
principle of fundamental fairness. The State counters that Ellis
was not the party who signed the complaint: the complaint was filed
and signed by a Missoula Deputy County Attorney. Moreover, the
State asserts, this argument is being made for the first time on
appeal, and therefore, should not be considered.
We agree with the State. The validity of the complaint was
not challenged at the District Court. This Court will not address
an issue raised for the first time on appeal. See 5 46-20-701(2),
MCA. Moreover, none of the exceptions to this rule, listed in
subsections (a) through (c) of 5 46-20-701(2), MCA, apply.
AFFIRMED.
Chi&f Justicd/
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