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Click here for the full text of this decision FACTS:Kevin Ball lived next door to Mircea Volosen, a veterinarian. On July 4, 2003, Ball was outside preparing for a cookout with a friend when he noted that Ginger, his miniature dachshund, was missing. Ball heard the chickens in a fenced-in pen in Volosen’s backyard clucking and fluttering from one side of the pen to another. Ball looked over his neighbor’s fence and saw that Ginger was in the chickens’ pen. Ball called for Ginger and apologized to Volosen, who was entering the pen carrying a maul, but Volosen struck Ginger with the maul, killing her. Ball called the police. Volosen first told an officer that Ginger had been killing rabbits on his property, then said Ginger killed his chickens. Because Volosen could not produce the bodies of any dead rabbits or chickens, the officer arrested Volosen for animal cruelty. At trial, Ball testified that Ginger had twice before gone into Volosen’s yard, and that on one of these occasions he observed a dead rabbit in a cage that Volosen claimed Ginger had killed. Volosen’s wife testified that her husband had told her about the two incidents, and that Volosen had told her that several rabbits had been killed and that several chickens had died from stress and trauma. She admitted, though, that she never observed any of the incidents. A veterinary specialist in poultry pathology testified that when subject to stress or trauma, chicken eggs might drop into the chicken’s abdominal cavity, which eventually kills them. Volosen was convicted under Penal Code �42.09 for killing Ginger “without legal authority.” He now appeals. HOLDING:Reversed and rendered. The court observes that the Penal Code does not define the term “legal authority.” The former Health & Safety Code �822.033 did include an explanation of what that term meant when it said that a person may lawfully kill a dog that is attacking, about to attack or has recently attacked a person’s fowl. “Thus, a person authorized to kill a dog by former health and safety code section 822.033 cannot be said to be acting”without legal authority’ to kill the dog as required to commit the offense of cruelty to animals under penal code section 42.09(a)(5).” The court dismisses the state’s contention that Volosen legally could have impounded the dog based on the previous attacks, instead of killing it July 4. Whether or not Volosen could have impounded the dog “provides no insight” into whether Volosen was without legal authority to kill Ginger during the July 4 incident. The court then notes that the word “attack” is not defined. Contrary to the state’s contention that the word necessarily connotes some sort of physical harm, the court finds the word also encompasses offensive or antagonistic movements of any kind, including chasing. Ball himself testified that Ginger was inside the chicken pen and that the chickens were clucking and fluttering. “[W]hat else could Ginger have been doing in the chicken pen but”attacking’ the chickens?” the court asks. “Viewing all the evidence in the light most favorable to the State, we cannot hold that a rational trier of fact could have found that Ginger did not attack Volosen’s chickens on the morning of July 4th immediately before Volosen struck and killed it with the maul.” OPINION:Walker, J.; Dauphinot, Walker and McCoy, JJ.

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