State v. Henderson

• Decision Date: 21 July 1914
• Parties: STATE v. HENDERSON. [d]
• Court: Oregon Supreme Court

143 P. 627

72 Or. 201

STATE v. HENDERSON. ^[d]

Supreme Court of Oregon

July 21, 1914

Department 2.

Appeal from Circuit Court, Harney County; Dalton Biggs, Judge.

James H. Henderson was convicted of the larceny of two calves, and appeals. Affirmed.

J. W. Biggs, of Burns, for appellant. J. A. Benjamin Asst. Atty. Gen. (Geo. S. Sizemore, Dist. Atty., of Burns and A. M. Crawford, Atty. Gen., on the brief), for the State.

BEAN J.

The only question raised upon this appeal is in regard to the proof of ownership of the property alleged to have been stolen. It is the contention of counsel for defendant that the state failed to offer any evidence of title of the two calves alleged in the indictment to be the property of the Blitzen Valley Land Company, except by brand, and that no evidence of the record of the brand was introduced. For this reason counsel for the defendant requested the court to direct a verdict of acquittal, and objected and excepted to instructions to the jury raising the same point.

The state's evidence tended to show that the calves in question were unbranded. It was sought upon the trial to identify them and prove ownership thereof by testimony tending to show the identification and title of the mothers of the calves. So far as the proof shows the brand upon the cows was unrecorded. Section 5524, L. O. L., provides as follows:

"* * * All brands shall be recorded in the county where owner resides, and in such other county where such animals usually range; and no evidence of ownership by brand shall be permitted in any court of this state on or after November 1 1894, unless such brand shall be recorded as in this act provided."

Section 5528, L. O. L., is to the effect that where the title to any stock is involved, the duly recorded brand on the animal shall be prima facie evidence of ownership of the person owning such brand. The brand referred to not having been recorded as provided by the statute, there must be some other proof of ownership of the calves.

It was competent to introduce the evidence as to the brand for the purpose of identifying the cows, the mothers of the calves alleged to have been stolen, although such brand was unrecorded. Such evidence is admissible upon the same ground as earmarks, color marks, or other known peculiar features of identity. State v. Hanna, 35 Or. 195, 57 P. 629; 1 R. C. L. p. 1082--3. Section 297 of Underhill on Criminal Evidence states the following:

"* * * Brands duly recorded according to law must usually be proved by a copy of the record to identify stolen animals. This is prima facie proof of the ownership of the animal bearing that brand. The statutes do not make brands and marks evidence of identity, for they are evidence aside from statute. The effect of the statutes is to render a certified copy of the record admissible in evidence. * * *"

In the case at bar the evidence as to the brand of the cows was given, together with the color and description of the cows and calves, and, as we understand, for the purpose of identifying the animals and not for the purpose of establishing ownership. Omitting the other proof, the evidence touching upon the question of ownership of the animals was in part as follows: Tom Allen, general superintendent of the Blitzen Valley Land Company, in behalf of the state, testified:

"Q. What company's holdings did the Blitzen Valley Land Company buy and take over? A. The French Glenn Company. Q. Take over all of their holdings? A. Taking over the real property and all of the cattle that was left in this country, all of the cattle that wasn't shipped out. Q. And took over their irons, did they? A. Yes, sir. Q. What was the old French Glenn iron? A. FG among other irons. Q. FG was one of their irons? A. Yes, sir, and the iron that we are running at the present time. Q. And the Blitzen Valley Land Company now own the FG iron? A. Yes, sir. Q. And the FG stock? A. Yes, sir."

Charles Wade, also a witness for the state, referring to the cows in question and that they were mothers of the calves, testified in part as follows:

"Q. Whose cows were those two cows? A.

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