See, s. 828.02, F.S. (1986 Supp.), defining "animal" to include "every living dumb creature." And see, Wilkerson v. State, 401 So.2d 1110 (Fla. 1981), holding that the definition of "animal" in s. 828.02 and "unnecessarily" in s. 828.12 are not unconstitutionally vague. See, s. 828.02, F.S. (1986 Supp.), defining "animal" to include "every living dumb creature."

Animal sacrifice also violates Florida Statutes § 828.12, which makes it a criminal violation for one to "unnecessarily" or "cruelly" kill an animal. See Wilkerson v. State, 401 So.2d 1110, 1112 (Fla. 1981). The Attorney General's opinion notes that the ritual killing of an animal does not constitute a "necessary" killing so as to make the prohibition in § 828.12 against unnecessarily or cruelly killing an animal inapplicable.

Moreover, we have already held that the type of concerns petitioner raises are more appropriately addressed to the Legislature. See Wilkerson v. State, 401 So.2d 1110, 1112 (Fla. 1981) ("Appellant has raised some difficult questions concerning the applicability of this statute [section 828.12] to hunters, fishermen, and pest exterminators. We believe that these hypothetical questions are more properly addressed to the legislature than to the courts.") Furthermore, as one commentator has noted, anti-cruelty statutes

The supreme courts of other states have ruled similarly. State v. Persons, 114 Vt. 435, 437, 46 A.2d 854, 855 (1946) (words "unnecessarily" and "proper" in prosecution, tracking statute, for "unnecessarily fail[ing] to provide [certain cattle] with proper food and drink" are not unconstitutionally vague); Wilkerson v. State, 401 So.2d 1110 (Fla. 1981) (word "unnecessarily" in statute prohibiting "unnecessarily or cruelly beat[ing], mutilat[ing], or kill[ing] any animal" is not unconstitutionally vague). The Allen court collected statutes from 44 jurisdictions, including D.C. Code § 22-801, which established a standard of care "in terms identical to or synonymous with that of Colorado: 'proper,' 'adequate,' 'sufficient,' or 'necessary.'"

to be enforceable"); Ferrias v. People, 71 Ill. App. 559 (1897) ("proper," as used in statute punishing failure to provide animals with proper food and drink, is to be understood in its ordinary sense); Moore v. State, 183 Ind. 114, 107 N.E. 1 (1914) ("necessary sustenance" and "proper food, drink, shelter, or protection from the weather" sufficiently definite); State v. Hafle, 52 Ohio App.3d 9, 367 N.E.2d 1226 (1977) ("necessary sustenance" not unconstitutionally vague); King v. State, 75 Okla. Crim. Rep. 210, 130 P.2d 105 (1942) ("necessary food, drink, or shelter" not unconstitutionally vague); McCall v. State, 540 S.W.2d 717 (Tex.Crim.App. 1976) ("necessary food, care, or shelter" sufficiently informs an accused of the nature and cause of the accusation against him and is not unconstitutionally indefinite); State v. Persons, 114 Vt. 435, 46 A.2d 854 (1946) (statute proscribing failure to give "proper food and drink" not so uncertain or indefinite as to deny due process). See also Wilkerson v. State, 401 So.2d 1110 (Fla. 1981) ("unnecessarily" in statute proscribing "unnecessarily . . . deprives of necessary sustenance or shelter, or unnecessarily or cruelly beats . . . any animal" not unconstitutionally vague; "criminal laws are not 'vague' simply because the conduct prohibited is described in general language"); State v. Kaneakua, 597 P.2d 590 (Hawaii 1979) (upholding statute proscribing "cruelty to animals" as not unconstitutionally vague).

Given the unchallenged record evidence indicating Enoch engaged in specific conduct each statute proscribes, Enoch lacks standing to question the vagueness as applied to other persons. See Hoffman Estates, 455 U.S. at 495, 102 S.Ct. 1186;Wilkerson v. State, 401 So.2d 1110, 1112 (Fla.1981) (concluding, where defendant pled nolo contendere in prosecution for animal cruelty, that he lacked standing to bring an overbreadth attack where the statute clearly proscribed his conduct); J.L.S., 947 So.2d at 646;Bryant v. State, 712 So.2d 781, 783 (Fla. 2d DCA 1998) (holding that defendant who was caught committing specific criminal conduct prohibited by a statute lacked standing to question the statute's vagueness as applied to the hypothetically innocent conduct of others). To summarize, we conclude that section 874.05(1) passes constitutional muster.

Given the unchallenged record evidence indicating Enoch engaged in specific conduct each statute proscribes, Enoch lacks standing to question the vagueness as applied to other persons. See Hoffman Estates, 455 U.S. at 495; Wilkerson v. State, 401 So. 2d 1110, 1112 (Fla. 1981) (concluding, where defendant pled nolo contendere in prosecution for animal cruelty, that he lacked standing to bring an overbreadth attack where the statute clearly proscribed his conduct); J.L.S., 947 So. 2d at 646; Bryant v. State, 712 So. 2d 781, 783 (Fla. 2d DCA 1998) (holding that defendant who was caught committing specific criminal conduct prohibited by a statute lacked standing to question the statute's vagueness as applied to the hypothetically innocent conduct of others).

Traditionally, when considering the facial validity of a statute, the standard to be applied is whether the statute's language is sufficiently definite to warn a person of common intelligence of the activity it proscribes. See Wilkerson v. State, 401 So.2d 1110, 1111 (Fla. 1981). The statute's language must not lend itself to arbitrary enforcement at an officer's discretion.

Each such decision we have uncovered has construed the phrase broadly. ( Wilkerson v. State (Fla. 1981) 401 So.2d 1110, 1112 [definition of "animal" as "'every living dumb creature' . . . excludes human beings from the commonly understood definition of animals" and thus animal cruelty statute applies to raccoons]; Waters v. People (Col. 1896) 113 23 Col. 33 [46 P. 112, 113-115] [definition "'every living dumb creature'" applies to doves used as live targets for trap shooting; opinion also describes birds as "dumb creatures" (46 P. at p. 113) and "dumb animals" ( id. at p. 114)]; State v. Kirchner (Ohio Hamilton Co. Muni. Ct. 1984) 19 Ohio Misc.2d 7 [ 483 N.E.2d 497, 499] [definition of "animal" as "'every living dumb creature' . . . would obviously include a snake . . ."].) We hold that the word "animal," as used in section 597, subdivisions (a) and (b), and as expressly defined in section 599b, includes roosters and other birds.

As to this defendant, we reject the contention. First, "any living animal" (Pen. Code, § 597, subd. (a)) used in various state cruelty to animals statutes applies to domesticated animals and wild animals in captivity ( State v. Cleve (N.M. 1999) 980 P.2d 23, 27), raccoons and any dumb living creature ( Wilkerson v. State (Fla. 1981) 401 So.2d 1110, 1111), and any dumb creature ( State v. Kaneakua (Hawaii 1979) 597 P.2d 590, 592). Both parties agree, as do we, there is no California case in point, and this is a case of first impression.