J. Thomas Schaeffer said he has not decided if he will appeal the ruling against his client, David Hursley, scheduled for trial next month.
Hursley, 54, of Battle Creek is charged with a felony of torturing an animal and a misdemeanor of cruelty to animals in the Feb. 9 baseball-bat beating of a dog. If convicted of all charges he faces up to 15 years in prison.
Circuit Judge Sarah Lincoln ruled Monday that District Judge Samuel Durham was not wrong to send the case to trial, despite questions raised by Schaeffer about the law.
Hursley was charged after police were called to a home on Bennett Street to investigate a shots-fired call. They found blood in the house and a severely injured Husky-mix dog in a blanket on the back porch.
Hursley admitted he struck the dog several times with a bat and shot it with a pellet gun after the animal bit his friend on the hand.
Schaeffer said the law allows a person to kill a dog if the animal is attacking a person.
"This dog attacked Mr. (David) Hill and my client took a ball bat and severely hit the dog a number of times," Schaeffer told the judge. "That is unrefuted."
Schaeffer said the dog was not dead when it was removed from the house but that Battle Creek Police officers arrived before Hursley killed the animal.
"He had an absolute right to kill the dog and but for the intervention of the police officer he would have killed the dog. He had no opportunity to complete the put-down. The officer went out and did what my client was attempting to do."
Police said they determined the dog could not be treated and was suffering and an officer shot it.
Assistant Prosecutor Dana Porter argued that while Michigan law may allow the killing of a dog, it does not allow torture. She disputed the suggestion that the dog attacked, permitting Hursley's response.
"He was bitten one time on the hand and there was never any testimony that David Hill was attacked," Porter said. "There was a minor puncture wound on the hand. After the dog was beaten with a bat and shot with a pellet gun it was left in severe distress."
She argued that Hursley did not attempt to kill the kill the dog or obtain medical care.
"He just left it there," she said.
The judge and lawyers also discussed the definition of attack.
"There is no question the dog attacked Mr. Hill," Schaeffer said. "The bite and drawing blood is an attack. If the dog bites someone or attempts to bite someone it doesn't matter if it's a small puncture wound or a large puncture wound. You have the right to kill a dog that is attacking. It is incorrect that one has the right to kill but if you don't do the job well enough and the officer completed the job now you are being subject to what you had to do to protect another person."
Lincoln said the statute does allow the killing of an attacking dog "but I am concerned that it does not allow someone to beat or punish a dog and there is no testimony that his intention was to kill the dog," she said, referring to statements by Hursley to police.
She told Schaeffer and Porter that she would allow the case to proceed to a trial scheduled for Aug. 9. If Schaeffer decides to appeal her decision the trial would be delayed.
"The cause of the just cause will be left to the jury."
(Battle Creek Enquirer - July 26, 2016)
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