State v. Vickery

• Decision Date: 20 June 1973
• Docket Number: No. 1076,1076
• Citation: 85 N.M. 389,1973 NMCA 91,512 P.2d 962
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Alfred Ike VICKERY, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 962

512 P.2d 962

85 N.M. 389

STATE of New Mexico, Plaintiff-Appellee, v. Alfred Ike VICKERY, Defendant-Appellant.

No. 1076.

Court of Appeals of New Mexico.

June 20, 1973.

Certiorari denied July 18, 1973.

Frank P. Dickson, Larry W. Burch, Branch, Dickson & Dubois, P.A., Albuquerque, for defendant-appellant.

David L. Norvell, Atty. Gen., James H. Russell, Jr., Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

WOOD, Chief Judge.

Convicted of unlawful branding, defendant appeals. The unlawful branding was the use of an unrecorded brand in violation of § 40A--18--3(C), N.M.S.A.1953 (2d Repl.Vol. 6). Defendant's appeal raises issues as to: (1) whether criminal intent is an element of the crime; (2) the constitutionality of § 40A--18--3(C), supra; (3) refused instructions on entrapment; and (4) refusal of a continuance.

Is criminal intent an element of unlawful branding?

The unlawful branding of which defendant has been convicted is the use of an unrecorded brand. Must defendant have had a criminal intent, see State v. Austin, 80 N.M. 748, 461 P.2d 230 (Ct.App.1969), in order to be convicted of this use?

State v. Shedoudy, 45 N.M. 516, 118 P.2d 280 (1941) held that a criminal intent is generally regarded as essential, but that the legislature may declare the commission of an act to be criminal without regard to intent. However, '* * * in such case it must clearly appear * * * that such was the legislative intent.' (Citation omitted). In determining legislative intent we consider prior statutes in pari materia. State v. Prince, 52 N.M. 15, 189 P.2d 993 (1948); see State v. Thompson, 57 N.M. 459, 260 P.2d 370 (1953); compare State v. Dennis, 80 N.M. 262, 454 P.2d 276 (Ct.App.1969).

In this case four prior laws bear on the subject of legislative intent.

1) Laws 1884, ch. 47 is an act for the protection of livestock. This law provided for the branding of cattle and the recording of brands. Section 5 of this law made it unlawful to brand an animal that was the property of another with any brand which was not the recorded brand of the owner of the animal. A violator of § 5 was deemed guilty of larceny and, under the authorized penalties, a violator could be sentenced to the penitentiary.

Laws 1884, ch. 47, § 5 was amended by Laws 1919, ch. 56, § 1. This 1919 amendment removed the reference to larceny. Assuming the reference to larceny in 1884 indicated that a criminal intent was required, the 1919 amendment removed that requirement. The provisions of this 1884 law, as amended in 1919, appear as § 40--4--11, N.M.S.A.1953 (Orig.Vol. 6). Section 40--4--11, supra, was repealed in 1963 as a part of the law which enacted § 40A--18--3(C), supra. See Laws 1963, ch. 303, § 30--1.

2. Laws 1895, ch. 6 is an act relating to brands. This act made additional provisions for the branding of cattle and the recording of brands. Section 20 of this law prohibited the branding of unbranded range cattle with a brand that had not been recorded. A violator of § 20 was deemed guilty of larceny; however, no specific penalty was provided for the violation of § 20.

Laws 1895, ch. 6, § 20, was amended by laws 1919, ch. 57, § 1. This 1919 amendment removed the reference to larceny. This amendment added, however, that the prohibited branding must have been done 'knowingly.' The requirement of 'knowingly' did not add a requirement of criminal intent since, in two decisions, the New Mexico Supreme Court has treated 'knowingly' as a concept separate from that of criminal intent. State v. Craig, 70 N.M. 176, 372 P.2d 128 (1962); State v. Blevins, 40 N.M. 367, 60 P.2d 208 (1936); compare State v. Borunda, 83 N.M. 563, 494 P.2d 976 (Ct.App.1972).

Assuming here, as we did in connection with the 1884 law, that the reference to larceny in 1895 indicated a criminal intent was required, the 1919 amendment removed that requirement. The provisions of the 1895 law, as amended in 1919, appear as § 40--4--15, N.M.S.A.1953 (Orig.Vol. 6). Section 40--4--15, supra, was repealed in 1963 as a part of the law which enacted § 40A--18--3(C), supra. Laws 1963, ch. 303, § 30--1.

3. Laws 1905, ch. 95 also pertains to brands. A portion of its title reads: 'AN ACT TO PREVENT AND PUNISH * * * THE USE * * * OF ANY BRAND THAT IS NOT RECORDED IN THE TERRITORIAL BRAND BOOK. * * *' Section 1 of this law made it unlawful to use any brand unless the brand had been duly recorded and the person using the brand held a certificate certifying to the fact of such record. This provision is clearly more comprehensive than the 1884 and 1895 laws discussed above. This 1905 provision is not limited to branding an animal not one's own and is not limited to the branding of range cattle. This 1905 provision applies to the use of any brand.

The penalty for use of an unrecorded brand is stated in § 5 of the 1905 act. As originally enacted there was a proviso to the authorized penalties. This proviso stated there would be no conviction if the brand was recorded within thirty days after seizure of the animals. An amendment in 1927 (Laws 1927, ch. 49, § 2) deleted this proviso. After this 1927 amendment, the authorized penalties of fine or imprisonment applied.

Section 7 of the 1905 law stated that all acts or parts of acts in conflict with the 1905 law were repealed. We are not concerned with whether § 7 was legally effective to repeal conflicting laws. Our concern is with legislative intent. At a time that the branding provisions in the 1884 and 1895 laws declared violations of these provisions to be larceny, § 7 of the 1905 laws shows a legislative intent that the provisions of the 1905 laws were the criminal provisions on branding that were to be given effect.

Section 6 of the 1905 law also shows legislative intent. This section stated that it was 'deemed evidence of guilt' that a person charged with using an unrecorded brand '* * * shall have been seen placing said brand upon any animal. * * *' The title and §§ 1, 5, 6 and 7 of the 1905 law clearly show that the legislature intended use of an unrecorded brand to be a crime without regard to criminal intent. Sections 1, 5 (as amended) and 6 of the 1905 law appear as §§ 40--4--12, 40--4--13 and 40--4--14, N.M.S.A.1953 (Orig.Vol. 6). These three sections were repealed in 1963 in the law which enacted § 40A--18--3(C), supra. Laws 1963, ch. 303, § 30--1.

4. In discussing the 1895 laws, we pointed out that it included provisions for the branding of cattle. These provisions appeared in Laws 1895, ch. 6, § 1. Section 1 has been twice amended, see Laws 1941, ch. 40, § 1 and Laws 1951, ch. 67, § 1. We are not concerned here with the details of the branding provisions but with the fact that requirements for branding exist. This requirement--the necessity of a brand--is existing law, appearing at § 47--9--3, N.S.A.1953 existing law, appearing at § 47--9--3, N.M.S.A.1953

When enacted in 1895, no penalty was provided for failure to brand as required. A penalty was provided in 1961. It is § 47--9--3.1, N.M.S.A.1953 (Repl.Vol. 7).

We will refer to §§ 47--9--3 and 47--9--3.1, supra, under another point. At present our concern is limited to legislative intent. Section 47--9--3.1, supra, shows a legislative intent, in 1961, that all livestock required to be branded were to bear a recorded brand.

The legislative intent of the 1905 law is clear. Any conflict between the 1884 and 1895 laws and the 1905 law was removed by subsequent amendments and those amendments also show legislative intent. This legislative intent again appears in the penalty provisions added in 1961. Considering the four laws together--those of 1884, 1895, 1905 and 1961--it clearly appears that immediately prior to the enactment of § 40A--18--3(C), supra, in 1963, criminal intent was not an element of the crime of using an unrecorded brand.

Our 'Criminal Code,' of which § 40A--18--3(C), supra, is a part, was enacted in 1963 (see § 40A--1--1, N.M.S.A.1953 (2d Repl.Vol. 6)) after a study of our criminal law. A criminal law study committee was established by Laws 1957, ch. 233. The committee was continued by Laws 1959, ch. 109 and Laws 1961, ch. 179. This committee was charged to examine the laws relating to criminal offenses, recommend changes deemed desirable and draft legislation to effect those changes.

The result was the 'Report of Criminal Law Study Interim Committee 1961--1962.' This report grouped the then existing statutes on a particular subject so that the existing statutes could be compared with the proposed statute. On the subject of unlawful branding it grouped §§ 40--4--11, 40--4--12, 40--4--13, 40--4--12 and 40--4--15, supra, for comparison with a proposed statute on unlawful branding. Little change was made in the proposal concerning use of an unrecorded brand. The committee proposal referred to brands recorded with the cattle sanitary board; the legislature added a reference to brands recorded with the sheep sanitary board. However, the prohibition on use of an unrecorded brand was enacted as proposed by the committee.

The committee's report to the 26th Legislature (see page 1 of the committee report) states a policy of the committee to retain provisions of existing criminal laws wherever possible and to amend those laws only where the law was unclear, unnecessary, a duplication or outmoded. Under this policy, the provisions as to use of a brand in the 1884 and 1895 laws, proviously discussed, were discarded. A comparison shows the 1905 law was the law proposed by the committee and the law reenacted as § 40A--18--3(C), supra.

On the basis of the foregoing, we hold that it clearly appears that criminal intent is not an element of the crime stated in § 40A--18--3(C), supra. With this result, we need not consider defendant's claim that the trial court did not instruct on criminal intent. No such instruction was necessary; criminal intent is not an element of that crime. The constitutionality of the crime of unlawful branding.

Without criminal...