                            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


                                                                  2
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


                                                                         3
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
                                   4
         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

                                                                        5
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


                                       6
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


                                                                      7
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

                                                                   9
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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