Van Buren v. State

Decision Date08 January 1902
Docket Number12,017
Citation88 N.W. 671,63 Neb. 453
PartiesGEORGE VAN BUREN v. STATE OF NEBRASKA
CourtNebraska Supreme Court

ERROR from the district court for Cherry county. Tried below before WESTOVER, J. Affirmed.

AFFIRMED.

Hamer & Hamer, John M. Tucker and E. D. Clarke, for plaintiff in error.

Frank N. Prout, Attorney General, and Norris Brown, Deputy, for the state.

OPINION

HOLCOMB, J.

The defendant below, plaintiff in error, was informed against and convicted of stealing a two-year-old steer, the property of one William Ferdon, of the value of $ 30. He prosecutes error to secure a reversal of the judgment of the trial court by which he was sentenced to be imprisoned in the penitentiary for the period of four years and adjudged to pay the costs of prosecution.

But two questions are presented in the brief of counsel for defendant as grounds for a reversal, one of which only is deemed deserving of more than a passing notice. It is urged strenuously that the evidence in support of the charge is insufficient to sustain the verdict of guilty returned by the jury, and for that reason the judgment rendered thereon can not stand. To this question we will first address ourselves. The theory of the state is that the steer charged to have been stolen was the property of the person mentioned, who was a stockman having many cattle on the range belonging to him and kept in Cherry county, all of which were branded by what is denominated a "box T brand"; that the animal involved in the controversy was a part of his herd, belonging to him, and was branded by the owner with the brand mentioned when a calf; that afterwards it was stolen by the defendant, into whose possession it was traced, and who had recently sold it to another party living in the same county, that the box T brand then on the animal had been burned over and altered so as to make it appear as what is called a "double cabin brand." The defendant's theory was that the animal had been raised by his stepfather from a cow belonging to a small herd of some fourteen or fifteen head of which he was the owner; that when about a year old it was branded for the first and only time with the double cabin brand, which was accomplished by the use of different irons and a rod of a larger size, by tracing the figures made with the hot end of the irons, and that, the first attempt not being successful, the figures or some of them were burned deeper with the larger iron; that before the animal was so branded the stepfather sold the animal, with three others, to the defendant, who in turn sold it to the party from whom it was recovered as the property of the alleged owner, Ferdon. After the recovery of the animal, the prosecution in the case at bar was began. It is contended that the testimony of the state's witnesses as to the animal being branded with the box T brand is in its nature only an opinion, guess or surmise, and therefore insufficient to establish the fact sought thereby; and that there was no direct evidence that the animal ever belonged to or was the property of Ferdon, even if the evidence warranted the inference that it had been branded with the box T brand. As to the latter, the evidence is positive and direct to the effect that Ferdon was the owner of all the cattle in that county branded as mentioned, and, although neither he nor any other person could identify the animal as belonging to him otherwise than by the brand, we regard the evidence sufficient to justify the finding that the property belonged to him, and was stolen by the defendant, in whose possession it was found, and who claimed the ownership thereof, and had disposed of the animal as his own, if it be conceded that it had been branded with the marks and evidence of ownership of Ferdon; there being nothing in the evidence to show or tending to prove that other cattle were similarly branded, and no explanation offered as to how the brand came to be found on the animal inconsistent with Ferdon's claim of ownership of all such cattle. The brand itself, with the evidence in relation to its use, and upon whose cattle it was placed, was sufficient evidence of ownership.

As to the evidence relating to the brand found on the animal soon after the defendant had disposed of it, and whether it was a box T brand, for the sake of brevity we can only give brief extracts from the testimony of a few of the state's witnesses in order to show the character and tendency of such evidence to establish the fact sought as to the alleged larceny, which rested primarily on the proposition that the animal was the property of Ferdon, and branded by him as his property when a calf. Ferdon, after testifying as to his cattle, where they ranged, the brand he used to show his ownership, when he branded, and his general experience with branding cattle as a stockman extending over some twenty-five years, gave testimony as follows:

Q. Now what brand did you observe upon this animal here in town before it was slaughtered?

A. The first thing was a box T.

Q. How did the box T--the lines--appear upon the animal in his lifetime as you observed it then?

A. I don't think I understand you.

Q. How did the lines of the original box T appear upon the animal when you seen it here in town?

A. They were much plainer. Just as if this was the plain brand, and these pencil marks had been added to it, they were merely shaded a little. (Witness shades the diagram of the brand with pencil to indicate what he is saying.)

Another witness, who was a stock inspector employed by different stock associations, and who was well qualified to testify regarding brands and rebranding cattle, testified:

Q. After having done so, what did you do with reference to determining what brand was on that animal?

A. I went to work, and had a butcher kill him.

Q. What did you do before that?

A. I clipped the hair off of him.

Q. For what purpose did you have him slaughtered?

A. To see whether the brand would show on the inside as well as on the outside.

Q. What brand did you discover on the steer when you got him clipped?

An objection was interposed and sustained.

Q. Well, before the clipping, what brand could you see and notice on the animal?

A. The open box T.

Q. Look at Exhibit A, and state what that brand is,-- what you call that brand?

A. I call it an open box T.

Q. Could you see that brand on the animal before it was clipped?

A. I could.

Q. Could you see any other brand?

A. I could not before it was clipped.

Q. After it was clipped you could see other brands on it, could you?

A. Yes, sir.

Q. State to the jury what you could see in the way of additional brands upon the animal after he was clipped and before he was slaughtered.

A. What some of them call a "double cabin."

Q. Examine the brand that is on this piece of hide, and state if that is the brand you saw on the animal after it was clipped and before it was slaughtered?

A. It is after I clipped it. Before I clipped it, I couldn't see this part of it and those bars under it.

Q. In your experience have you ever had occasion to observe the effect that it has, if any, to reburn the lines of an old brand,--what effect it has upon the hide of the animal?

A. Yes sir; I have seen a good many of them burnt over.

Q. What effect does it have on the hide of the animal?

A. It makes them a good deal larger where you burn over, and it will always show. Whenever a brand is burnt over, it will show plainer, and it will show from the under side, when the skin is taken off the animal, more than the first brand that was put on the animal.

Q. Then I understand you to say that the reburning would increase the thickness and size of the lines?

A. Yes, sir, that is what it does.

Q. Now state if you ever had occasion to observe what effect it has upon the transparency of the lines, after the animal is slaughtered and the hide dried?

A. I don't understand.

Q. I mean the transparency of the lines, as in holding it up to the light. I will ask you to state what effect the reburning has in increasing the transparency?

A. It always shows a great deal plainer if it is burnt over.

Q. It would be more transparent when held up to the light?

A. Yes, sir.

Q. Now, take the hide, and point out to the jury the lines that have been reburnt.

A. (Witness takes the piece of hide and indicates to the jury): There is the brand on the hide, right there.

Q. Trace first the lines upon that which have been reburnt in your judgment.

A. Right here, and down there, and across here. (Witness indicating on the piece of skin with pencil so that the jury can see.)

Q. And that would make the box T with the exception of this line here?

A....

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