People v. Olary , 10 Mich. App. 640 ( 1968 )

Quinn, J.

Defendant appeals from his circuit court jury conviction on a charge of cruelty to animals in violation of CL 1948, § 752.21 (Stat Ann 1962 Eev § 28.161) and the sentence imposed following such conviction. Although defendant alleges and argues 11 issues on this appeal, we find that only 2 are properly before us, and one of those is stated in unacceptable form. The remaining 9 issues were not raised below for consideration by the trial court and they are not before us. People v. Willis (1965), 1 Mich App 428.

At the close of the people’s case, defendant moved to dismiss the charge against him for the reason that there was no testimony that defendant did anything to the animals, hence no proof that he was guilty of cruelty toward them. The pertinent wording of the statute is as follows:

“Anri whoever having the charge or custody of any animal, either as owner or otherwise, inflicts unnecessary cruelty upon the same, or wilfully fails to provide the same with proper food, drink, shelter, or protection from the weather, * * * »

The motion was denied and defendant questions the propriety of this ruling by his first question, “Did the record contain evidence justifying jury submission of the question whether defendant inflicted injury on his animals?”

The transcript contains testimony before the close of people’s case of the emaciated condition of some of the animals, that some bore marks of beatings and that defendant was the owner of the animals. There was no proof of wilful deprivation of proper food and drink, and although the fact of deprivation of proper food and drink was inferable from the emaciated condition, violation of th$ statute was not shown without a showing of wilfulness or facts from which wilfulness could be inferred.

On the question of inflicting unnecessary cruelty upon the animals, defendant’s position is untenable unless the statute is interpreted to mean that direct proof of such infliction is required. We refuse to interpret the statute so restrictively and agree with the trial court that unnecessary cruelty may be inflicted by inattention to the condition of the animals. The record at the close of people’s case did support a holding that defendant was inattentive to existing condition of the animals that required attention. It was not error to deny the motion and leave the question for jury determination. People v. Williams (1922), 218 Mich 436.

Following denial of his motion to dismiss, defendant testified. His testimony established beyond peradventure that his animals were beaten, but, according to him, the beating was done by others. This precludes us from accepting defendant’s statement of claimed question No. 2 in the following form:

“May defendant owner of farm animals be convicted of cruelty for omitting to give certain medical care or omitting to obtain outside advice or veterinary medical care for his injured animals;

“(1) Under statute (CL 1948, §752.21 [Stat Ann 1962 Rev § 28.161]) which does not express any duty to give or provide medical care nor set out any standard of care or require the obtaining of veterinary care for injured animals, and

“(2) Under a record devoid of proof establishing the existence of any custom or practice followed by animal owners generally or actually or inferentially known to defendant?”

If there is a second question, it would be whether the record before us sustains the conviction, and it clearly does.

Affirmed.

McGregor, P. J., concurred with Quinn, J.