Commonwealth v. Levandosky

Cummins, J., Defendant was indicted for malicious mischief, it being charged that he maliciously killed a dog. The case is before the court in banc upon motion to quash, defendant contending that under the Dog Law of May 11, 1921, P. L. 522, 528, defendant could not be indicted but only proceeded against summarily. Section twenty-three of the Act of May 11, 1921, provides that it shall generally be unlawful to kill a licensed dog, and section thirty-six of this act, as amended by the Act of May 14, 1929, P. L. 1713, 1717, provides that, for a violation of the act, the offender, “upon conviction in a summary proceeding before a magistrate, alderman, or justice of the peace, shall be sentenced to pay a fine of not less than five dollars nor more than one hundred dollars, and costs of prosecution, or to undergo imprisonment not exceeding thirty days, or both.” The Commonwealth’s contention is that the offense charged was indictable at common law (which contention would appear to be supported by the weight of authority: State v. Sumner, 2 Ind. 377; State v. McDuffie, 34 N. H. 523; Julienne v. Jackson, 69 Miss. 34; Nehr v. State, 35 Neb. 638; Com. v. Cramer, 2 Pearson, 441, 443; 1 Trickett on Penna. Criminal Law, 189) and that defendant could still be so prosecuted. The act, however, having made the killing of a dog a summary offense triable before a magistrate and punishable by a milder punishment, has thereby taken this offense out of the class of crimes for which an indictment will lie: Com. v. Railing, 113 Pa. 37, 45, 46; Railing v. Com., 110 Pa. 100, 105; section 183 of the Criminal Code of March 31, 1860, P. L. 382, 426; Com. v, Evans, 13 S. & R. 426, 430; Com. v. Jackson, 15 Gray (Mass.) 187, 188; Robbins v. State, 8 Ohio St. 131; Com. v. Johnson, 5 D. & C. 769, 770; Com. v. Winkelman, 12 Pa. Superior Ct. 497, 519. And now, September 29, 1930, indictment quashed. Prom Harry D. Hamilton, Washington, Pa.