State v. Dunn , 13 Idaho 9 ( 1907 )

AILSHIE, J.

The defendants were convicted of the crime of grand larceny, and appealed from .the order and judgment denying a motion for a new trial. The first specification of error is directed against the ruling of the court in admitting plaintiff’s exhibit 1, which purports to be a bill of sale of the animal that is alleged to have been stolen, given by one John Carter to the complaining witness. This instrument is not very intelligible, but that is no sufficient reason for its rejection in evidence for whatever information it might furnish the jury. There was no error in its admission.

The next assignment of error is directed against the admission of parol evidence to prove the ownership of the brand. The prosecuting witness Neilson claimed to be the owner of the stolen animal, and he traced his title to the animal back to one Mickey Morton. Neilson seems not to have had any. brand recorded and' had never branded this animal. Morton, however, who claimed to have been the original owner of the animal, had branded it, as he testifies, and also shows by other witnesses, with what he terms the quarter circle A brand, made thus: A. It is not shown that Morton had ever caused his brand to be recorded in compliance with law, and counsel for the defendants objected to the introduction of parol evidence of Morton’s ownership of the brand on that ground, and his objection was overruled. The witness testified that some years ago the quarter circle was broken off his brand, and that he had been in the habit of branding with the A and then running the quarter circle above the A with the heel of the letter. The defendants, on the other hand, claimed that the animal belonged to one Ben Allen, and that he had instructed them when riding the range to get this animal for him if they found it. Allen appeared as a witness on behalf of defendants and testified that the animal belonged to him, and that the brand thereon was his brand, and he produced the certificate of the state recorder of brands showing that his brand was the letter A on the left shoulder with a bar ' over it, thus: A. There was a sharp conflict among the witnesses as to whether the animal alleged to have been stolen had been originally branded with the bar A brand or quarter circle A brand. At the trial it appeared quite clearly that at some time both the bar and the quarter circle had been placed above the A, but the difference arose as to which had been placed there at the time the A was burned on the animal.

Counsel for defendants argues with great earnestness and much reason that the ruling of the trial court in permitting parol evidence as to the ownership of this brand was in direct violation of the provisions of Senate Bill No. 61, known as the livestock and branding law, approved March 7, 1905 (Sess. Laws 1905, 352). That act provides that the state auditor shall be state recorder of brands, provides for the recording of brands for all livestock, how the record shall be made and kept, and the manner and method of designating brands, and sections 5 and 14 thereof, which are relied on here and are particularly applicable to the question involved are as follows: ‘ ‘ Sec. 5. All brands shall be recorded with the state recorder. No evidence of ownership of stock by brands or for the purpose of identification shall be permitted in any court of this state unless the brand shall have been recorded as provided in this act.....Sec. 14. In all suits at law or in equity, or in any criminal proceedings when the title or right of possession is involved, the brand of any animal shall be prima facie evidence that the animal belongs to the owner or owners of the brand, and that such owner is.entitled to the possession of the said animal at the time of the action: Provided, that such brand has been duly recorded as provided by law. Proof of the right of any person to use such brand shall be made by a copy of the record of the same, certified to by the state recorder in accordance with the provisions of this act, or the original certificate issued to him by the state recorder. Parol evidence shall be inadmissible to prove the ownership of a brand. ’ ’ A reading of these sections at once discloses that they are couched in clear, plain and unmistakable language, and it does not seem that the intent thereof can easily be mistaken. It is first provided that: “No evidence of ownership of stock by brands or for the purpose of identification shall be permitted in any court of this state unless the brand shall have been recorded as provided in this act.” Then section 14 provides that in any case, either civil or criminal, the proof of the recording of the brand in compliance with law shall be prima facie evidence of ownership and the right of possession of the animal. But the legislature, still fearful lest on some pretext parol evidence might be admitted without first showing compliance with the law, closes section 14 with this admonition: “Parol evidence shall be inadmissible to prove the ownership of a brand.”

Counsel for the state argue that the statute is absurd if taken in its literal meaning, and that it should be so construed as to permit parol evidence. This contention does not merit consideration, for the reason that the language is plain and unmistakable in its meaning and import, and the court has no authority to say that the legislature did not mean what they have clearly said. The subject is one over which they have plenary power. They might declare that any particular class of evidence shall be inadmissible to establish any particular fact or issue. They may prescribe the modes of proof and the manner of making proof, and the effect such proof shall have in the courts. (Fing Yue Ting v. United States, 149 U. S. 698, 37 L. ed. 905, 13 Sup. Ct. Rep. 1016; 11 Am. & Eng. Ency. of Law, 550, and notes.)

Section 1179 of the Eevised Statutes is substantially the same as section 14 of the act above quoted, with the exception that the last sentence found in section 14, prohibiting the admission of parol evidence, was not contained in the former statutes. In State v. Rathbone, 8 Idaho, 161, 174, 67 Pac. 186, this court, referring to section 1179 of the Eevised Statutes, made the suggestion that the statute did not prohibit parol evidence of ownership of an unrecorded brand. The act of March 7, 1905, having been passed subsequent to the decision in State v. Rathbone, supra, it must be assumed that the last sentence in section 14 was added purposely in order to finally settle the question as to the admission of parol evidence in such cases. Indeed, we think there can be no fair and reasonable question of doubt upon that point. The statute, however, appears on its face to be a very reasonable and salutary provision, and it was the evident purpose of the legislature to prohibit different persons from using the same brand on their animals, which practice prior to this statute led to interminable litigation and conflicts between owners of livestock — sometimes honest differences and sometimes otherwise. It was evidently intended to enforce obedience to the statute by excluding all other methods of proving ownership in a brand than by a compliance with the statute. Of course, it is no more difficult now than it ever has been to prove ownership in an unbranded animal, and this statute puts the owner of an animal branded with an unrecorded brand in the same position with reference to proof of its ownership as if it had no brand on it at all. Although ownership of an unrecorded brand may not be proven by parol, still the brand itself may serve as the means to the owner himself for identification of the animal the same as any other artificial or natural mark might do. An animal might have a wire cut on it, which would serve as the only means by which the owner could identify that animal, yet he would have no special right, property or ownership in that particular kind of a wire cut, and the fact that such a wire cut was on his animal would not be proof that he was the owner of all animals that had that wire cut on them, nor would it furnish in itself evidence of ownership in any particular person. While a man may mark or brand his animal in any manner he sees fit, he can acquire no property right in such mark or brand, nor can he invoke the protection of .law in its use or invite any presumption as to ownership of the animal on which such mark or brand has been placed, unless it has been selected, designated and recorded in conformity with law. Without first designating and recording it, every other citizen will have an equal and like right to the use of such brand, and it was just such confusion and disorder that the law meant to provide against. Without a compliance with the branding law, a man may still prove ownership of an animal marked with an unrecorded brand, but he may not be heard in court to say that he is the owner of such brand or that he has any property right therein.

This case is a very apt illustration of the necessity of the enforcement of the branding laws. Here the witness testifies himself that' he had no brand that would fill the legal requirements of the statute in respect to the particular brand of which he claimed ownership. This brand was originally made with the quarter circle above the letter A. The brand when made and recorded and used in accordance with law would always appear at a particular and specified place on the animal with the letter in a given position, with the quarter circle in every instance the same distance from the letter and over the letter when in its natural position. On the other hand, as the witness was using the brand with the quarter circle detached, and using the heel of the letter to make a running brand over the A for the quarter circle, it might be any length and any distance from the letter. Indeed, it is shown by affidavits on motion for a new trial that this witness had horses in his possession which he claimed that were branded with the letter A inverted and the quarter circle over it, thus: y. Since the case must be reversed on the ground of the improper admission of evidence as above suggested, we will not enter into any discussion as to the merits of the affidavits on motion for a new trial.

It is argued by the state that since Morton sold the animal prior to the date on which the brand was required to be recorded under the act of March 7, 1905, the rule of evidence prescribed by the act is not applicable here. There is no contention, however, but that it was in force before the trial, and this statute only dealing with a rule of evidence and not with the remedy itself, it was applicable to the case at the time of the trial. (Boise Irr. etc. Co. v. Stewart, 10 Idaho, 38, 77 Pac. 25, 321.)

The court erred in admitting parol evidence of the ownership of an unrecorded brand, and it was equally erroneous, after such evidence had been admitted, to refuse defendants’ requested instruction No. 3, to the effect that such evidence should not.be considered by the jury in the absence of proof of the brand having been recorded. The judgment is reversed and the cause remanded, with direction to grant a new trial.

Stoekslager, C. J., concurs.