State v. Dunn

• Decision Date: 03 January 1907
• Citation: 13 Idaho 9,88 P. 235
• Parties: STATE OF IDAHO, Respondent, v. JESSE DUNN and JESSE DE MASTERS, Appellants
• Court: Idaho Supreme Court

88 P. 235

13 Idaho 9

STATE OF IDAHO, Respondent, v. JESSE DUNN and JESSE DE MASTERS, Appellants

Supreme Court of Idaho

January 3, 1907

LARCENY OF LIVESTOCK-BRANDING OF LIVESTOCK-OWNERSHIP OF BRAND-PAROL EVIDENCE NOT ADMISSIBLE-OWNERSHIP IN BRAND ONLY ACQUIRED IN CONFORMITY WITH LAW.

1. Under the provisions of sections 5 and 14 of the act of March 7, 1905 (Sess. Laws 1905, p. 352), known as the livestock and branding law, parol evidence is not admissible to prove ownership of a stock brand.

2. Where a stock brand has been recorded in compliance with the provisions of the act of March 7, 1905 (Sess. Laws 1905, p 352), known as the livestock and branding act, the production of the original certificate issued by the state recorder, or a certified copy of the record, constitutes prima facie evidence of the ownership of the brand and of the right of possession of the animals on which the same is found.

3. Under the provisions of the above-mentioned act, no ownership can be acquired in a stock brand or the right to use the same in any other manner than by a compliance with the provisions of the statute for the recording of brands and the transfer thereof.

4. One who has failed to record his brand as required by the provisions of the statute must prove his ownership of the animal on which an unrecorded brand is found in the same manner as he would prove his ownership of any other personal property or of an unbranded animal.

(Syllabus by the court.)

APPEAL from the District Court in and for Boise County. Hon. George H. Stewart, Judge.

Prosecution by information on the charge of grand larceny. Defendants were convicted and sentenced to a term in the state penitentiary, and appealed from the judgment and an order denying their motion for a new trial. Reversed.

Reversed and remanded, with direction.

Lot L Feltham, for Appellants.

When the trial court permitted, over the objection of the defendants, the following question and answer: "Q. What is your brand? A. Quarter circle A, on ," an error was committed that must, from the nature of things, be considered reversible error; else the legislature had as well added to said section 14 of the 1905 law the following clause "Parol evidence shall be inadmissible to prove the ownership of a brand, unless the trial court want to admit parol evidence to prove the same."

The case of State v. Rathbone, 8 Idaho 161, 67 P. 186, was decided in 1901, and the legislator who introduced that bill in 1905 in all probability had that decision in mind, else it would not have been necessary to have worded the fourteenth section of the 1905 law so near like section 1179, Revised Statutes, and then added the clause that parol evidence would be inadmissible to prove the ownership of a brand.

The 1905 stock brand law goes to the question of proof and affects the remedy only. When a statute affects the remedy only, and by giving it a retroactive operation no vested rights will be affected, it will be given such operation by the courts unless it plainly appears that the legislative intent was otherwise. (Barnett v. Vanmeter, 7 Ind.App. 45, 33 N.E. 666; Johnson v. Board, 107 Ind. 15, 8 N.E. 1.)

No man or corporation has a vested right in the rules of evidence. They pertain to the remedies provided by the state for its citizens, and do not constitute a part of any contract. They are subject to control and modification by the legislature, whether affecting proof of existing rights, or rights subsequently acquired. Changes in them may be made applicable to existing causes of action. (Chicago B. & Q. R. v. Jones, 149 Ill. 361, 41 Am. St. Rep. 278, 37 N.E. 247, 24 L. R. A. 141; Marks v. Crow, 14 Or. 382, 13 P. 55.)

J. J. Guheen, Attorney General, Edwin Snow, Philip R. Hindman and H. L. Fisher, Prosecuting Attorney, for the State.

The stock brand law must be considered in the light of a reasonable interpretation of all its provisions regarded as one harmonious whole. The courts will take judicial notice of whatever may affect the validity or meaning of a statute. They will take notice of events generally known within their jurisdiction, of the history of legislation and of the reasons urged for and against the passage of a law. (2 Sutherland on Statutory Construction, sec. 310; Adams v. Yazoo etc. R. R. Co., 75 Miss. 275, 22 So. 824.)

The application of the statutory requirement to the conditions in this case would be of a retroactive character. The law does not require that all brands must be filed with the state recorder on October 1, 1905, or within any particular time thereafter. Even under the literal interpretation contended for on behalf of appellants, it cannot be argued that the trial court erred in permitting the only proof of ownership available in this particular case, where the dispute as to ownership arose prior to taking effect of the statutory requirement.

The "controlling purpose" of the stock brand law is the protection of the stock growers. Surely, it will not be perverted to defeat that end and the ends of justice, by enabling criminals to escape in cases where proof of ownership, which is always essential to secure a conviction, must depend upon parol evidence. The provisions referred to must be regarded as supplementary to, and not in derogation of, the well-known rules of the common law of evidence, as embodied in our Code of Civil Procedure. In this view, under what is known as the "best evidence rule," parol evidence would be inadmissible to prove the ownership of a recorded brand, because not the best evidence available; but where a brand has not been recorded, parol evidence being the best evidence available, is admissible to prove ownership. (State v. Rathbone, 8 Idaho 161, 174, 67 P. 186.)

AILSHIE, J. Stockslager, C. J., concurs. SULLIVAN, J., Dissenting.

OPINION

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...