State v. Warner

• Decision Date: 04 February 1919
• Citation: 178 P. 221,91 Or. 11
• Parties: STATE v. WARNER ET AL.
• Court: Oregon Supreme Court

178 P. 221

91 Or. 11

STATE v. WARNER ET AL.

Supreme Court of Oregon

February 4, 1919

Department 2.

Appeal from Circuit Court, Deschutes County; T. E. J. Duffy, Judge.

J. E Warner and another were jointly indicted for larceny of a steer. Warner was granted a separate trial, resulting in conviction, and he appeals. Reversed and cause remanded.

On April 8, 1918, the defendant was indicted jointly with G. W Conrad by the grand jury of Deschutes county, for the larceny of a steer alleged to have been the personal property of J T. Houston. The defendant demanded and was granted a separate trial, as a result of which the jury found him guilty as charged. From the judgment based upon that verdict he prosecutes this appeal, specifying eight different assignments of error, including the conduct of the prosecuting attorney and the comment of the court; but the vital question is the proof of the ownership of the steer by Houston as alleged in the indictment, and whether there is sufficient evidence to sustain the judgment.

Bean J., dissenting.

Ross Farnham and W. P. Myers, both of Bend, for appellant.

H. H. De Armond, Dist. Atty., of Bend (N. G. Wallace, of Prineville, on the brief), for the State.

JOHNS J.

We do not deem it necessary to analyze the evidence. If the proof of ownership of the steer is sufficient, the testimony is ample to sustain the conviction.

The old law often resulted in a confusion of brands and sometimes two persons claimed to own the same animal by virtue of the same brand, and no one had an exclusive, vested property right in any brand, to avoid which the Legislature in 1915 enacted the law providing "for a state recorder of brands and the manner of and fees for recording and transferring brands." Laws 1915, c. 33, p. 43. Excerpts from this enactment follow:

"Section 1. The state veterinarian shall be ex officio state recorder of brands.

"Sec. 2. No brand or brands similar thereto shall be used by more than one person, firm, association or corporation nor shall any brand be recorded in this state elsewhere than in the office of the state veterinarian.

"Sec. 3. 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. 4. On and after the passage of this act any person, firm, association or corporation desiring to adopt any brand shall make and sign a certificate setting forth a fac simile and description of the brand giving definitely its location on the animal, together with a statement of the desire to adopt the same and shall file the same with the state veterinarian who shall record the same in a book kept by him for that purpose and issue a certificate to the person, firm, association or corporation adopting the same and from and after the issuance of such certificate the person, firm, corporation or association shall have the exclusive right to use such brand within the state. Such person, association or corporation upon filing a brand shall pay to the state veterinarian for recording the same a fee of $1.00; and provided, that all applications to have brands recorded shall be held by said state veterinarian for the period of sixty days after this act goes into effect before the same are recorded and that in the event two or more persons, firms, associations or corporations make application to have the same brand recorded, the one who has had said brand recorded in any county in this state for the greatest length of time shall be entitled to have said brand recorded with the state veterinarian. The evidence of the record in such county shall be furnished by a certificate of the county clerk; and provided further, that the state veterinarian shall not file or record any brand if the same has already been filed or recorded by him in favor of some other person, firm, association or corporation but shall return such fee and fac simile to the person, firm, association or corporation sending the same."

Section 6 declares that:

"Any brand recorded in compliance with the requirements of this act shall be the property of the person, firm, association or corporation causing such record to be made and shall be subject to sale, assignment, transfer, devise and descent as personal property."

Section 8 provides that:

"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. * * *"

The act of 1915 was followed by another law passed by the Legislature in 1917 (Laws 1917, c. 132, p. 170) entitled:

"An act making it a crime for any person to brand, or cause to be branded, a horse, gelding, mare, mule, ass, jenny, foal, bull, steer, cow or calf, without first having such brand recorded as required by law"

--and providing penalties for its violation. The whole purpose and intent of this legislation was to provide for the recording of brands, to create an exclusive ownership of and a vested right in a particular brand after it had been recorded as therein specified, and to prevent any other person from claiming of asserting any right to such recorded brand, to establish prima facie ownership and right of possession of the owner of such a brand in or to any animal marked with such brand, and to declare incompetent any parol evidence of the ownership of a recorded brand. The fees for recording the brand and obtaining the certificate are nominal, and the law is simple, definite, and certain in its application.

The law is substantially copied from a similar statute of the state of Idaho, and in its construction the Supreme Court of that state laid down this rule in the syllabus of the opinion in State v. Dunn, 13 Idaho, 9, 88 P. 235:

"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 any unbranded animal."

The opinion in that case says:

"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."

The court in the case of State v. Randolph, 85 Or. 172, 166 P. 555, construing the act of 1915 above referred to, in an opinion by Mr. Justice Harris said:

"Both the old and the new law make a recorded brand prima facie evidence that the owner of the brand owns the animal upon which the brand is found. Both laws prohibit proof of ownership of an animal by proof of the use of an unrecorded brand. The old law did not prohibit evidence of the use of an unrecorded brand to prove identity, but the new law does prohibit a party from offering evidence of an unrecorded brand for the purpose of identifying an animal."

The law was intended to prevent and punish the use of a recorded brand by another and to induce owners of live stock to record their brands, to make such recorded brands a species of property right, to define and protect such property right, to constitute the owner of a recorded brand the prima facie owner of any animal found marked with such recorded brand, to obviate confusion and the dual claim of ownership of the same brand, and to simplify the proof of ownership in both civil and criminal cases.

The certificate of the state veterinarian vests in any person who has complied with the law the exclusive right to the use of the recorded brand, and that right carries14 with it the prima facie ownership and right to the possession of any animal which is branded with such recorded brand. Proof of the right to the use of such brand may be made by the production of the original certificate issued by the state veterinarian or a copy thereof certified by that officer. This is very simple, and in all ordinary cases where the brand on an animal corresponds with the recorded brand and the owner of the recorded brand is alleged to be the owner of the animal, the certificate mentioned or the certified copy thereof will be sufficient evidence to sustain the allegation of ownership. But where the brand has not been recorded as the law provides, and the ownership of the brand on the animal is in one person, while the indictment charges the ownership of the animal to be in another, then the identification of the animal or the proof of ownership must be by evidence exclusive of the brand itself. The law does not prohibit testimony as to the ownership or identification of an unbranded animal or of an animal marked with an unrecorded brand, but it does prohibit any "evidence of ownership of stock by brands or for the purpose of identification" of an animal unless the brand upon it shall have been recorded as the act provides.

Upon the question of ownership, Clarence R. Harvey, a witness for the state, after testifying as to the size, color, odd-shaped head, and the red spot under the left eye of the steer, and that he first saw the animal "along the fore part of last August," continued as follows:

"Q. You mean to say to this jury that you can examine an animal out on the range and look at him without anybody telling you, and you can tell whose animal he is? A.

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