| Idaho | Jan 3, 1907
Lead Opinion
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
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
Counsel for the state argue that the statute is absurd if taken in its literal meaning, and that it should be so construed as to permit parol evidence. This contention does not merit consideration, for the reason that the language is plain and unmistakable in its meaning and import, and the court has no authority to say that the legislature did not mean what they have clearly said. The subject is one over which they have plenary power. They might declare that any particular class of evidence shall be inadmissible to establish any particular fact or issue. They may prescribe the modes of proof and the manner of making proof, and the effect such proof
Section 1179 of the Eevised Statutes is substantially the same as section 14 of the act above quoted, with the exception that the last sentence found in section 14, prohibiting the admission of parol evidence, was not contained in the former statutes. In State v. Rathbone, 8 Idaho, 161" court="Idaho" date_filed="1901-12-16" href="https://app.midpage.ai/document/state-v-rathbone-5168771?utm_source=webapp" opinion_id="5168771">8 Idaho, 161, 174, 67 Pac. 186, this court, referring to section 1179 of the Eevised Statutes, made the suggestion that the statute did not prohibit parol evidence of ownership of an unrecorded brand. The act of March 7, 1905, having been passed subsequent to the decision in State v. Rathbone, supra, it must be assumed that the last sentence in section 14 was added purposely in order to finally settle the question as to the admission of parol evidence in such cases. Indeed, we think there can be no fair and reasonable question of doubt upon that point. The statute, however, appears on its face to be a very reasonable and salutary provision, and it was the evident purpose of the legislature to prohibit different persons from using the same brand on their animals, which practice prior to this statute led to interminable litigation and conflicts between owners of livestock — sometimes honest differences and sometimes otherwise. 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. Although ownership of an unrecorded brand may not be proven by parol, still the brand itself may serve as the means to the owner himself for identification of the animal the same as any other artificial or natural mark might do. An animal might have a wire cut on it, which would serve as the only means by which the owner could identify that animal, yet he would have no special right, property or ownership in that particular kind
This case is a very apt illustration of the necessity of the enforcement of the branding laws. Here the witness testifies himself that' he had no brand that would fill the legal requirements of the statute in respect to the particular brand of which he claimed ownership. This brand was originally made with the quarter circle above the letter A. The brand when made and recorded and used in accordance with law would always appear at a particular and specified place on the animal with the letter in a given position, with the quarter circle in every instance the same distance from the letter and over the letter when in its natural position. On the other hand, as the witness was using the brand with the quarter circle detached, and using the heel of the letter to make a running brand over the A for the quarter circle, it might be any length and any distance from the letter. Indeed, it is shown by affidavits on motion for a new trial that this witness had horses in his possession which he claimed that were branded with the letter A inverted and the quarter circle over it, thus: y. Since the case must be reversed on the ground of the improper
It is argued by the state that since Morton sold the animal prior to the date on which the brand was required to be recorded under the act of March 7, 1905, the rule of evidence prescribed by the act is not applicable here. There is no contention, however, but that it was in force before the trial, and this statute only dealing with a rule of evidence and not with the remedy itself, it was applicable to the case at the time of the trial. (Boise Irr. etc. Co. v. Stewart, 10 Idaho, 38, 77 Pac. 25, 321.)
The court erred in admitting parol evidence of the ownership of an unrecorded brand, and it was equally erroneous, after such evidence had been admitted, to refuse defendants’ requested instruction No. 3, to the effect that such evidence should not.be considered by the jury in the absence of proof of the brand having been recorded. The judgment is reversed and the cause remanded, with direction to grant a new trial.
Dissenting Opinion
Dissenting.
I cannot concur in the conclusion reached by my associates. The horse in question is alleged to have been stolen on the twentieth day of June, 1905. The stock brand law referred to in the opinion of my associates became a law on March 7, 1905, section 6 of which is as follows: ‘1 Sec. 6. On or before the first day of June, 1905, after the passage of this act, every stock-grower owning sheep, and on or before the first day of October, 1905, the owners of all other livestock using any recorded brand, shall forward to the state recorder a copy of such recorded brand, duly certified to by the county recorder of the county in which such brand is recorded. Such person shall pay the recorder a fee of twenty-five cents, and shall forward with the brand so certified a fee of fifty cents to the state recorder to pay for the recording of the same.” Section 7 of the same act is as follows: “Sec. 7. Upon receipt of such certificate and fee
Section 6 refers to recorded brands or brands that have been recorded in the office of the county recorder of some county of the state. Section 8 provides for the recording of brands that have not been recorded in the office of the county recorder of any county of the state. It will be observed from the provisions of said section 6 that stock-growers other than those owning sheep who had recorded their brand in some county should forward to the state recorder a copy of such brand duly certified, on or before the first day of October, 1905. Section 7 of said act provides, among other things, that upon receipt of the certificate of the county recorder of the brands provided for in section 6 and of the proper fee,
Keeping these provisions of said law in mind, we will apply them to the facts of case at bar. The complaining witness purchased the horse in question on May 2, 1905, from one John Carter. Carter had sometime theretofore purchased said horse from said E. E. or “Mickey” Morton, who had raised him and had placed his brand upon him, which brand was testified to on the trial of this ease. It does not appear from the evidence whether said Morton had recorded said brand with any county recorder. He had parted with the horse long before said brand law required the stock-raiser to have his brand recorded by the state recorder. The horse is alleged to have been stolen on June 20, 1905, and in case Morton had theretofore recorded his brand with the county recorder under the provisions of said section 6, he'was required to record said brand with the state recorder on or before the first day of October, 1905, and if he had not recorded his said brand with the county recorder, by the provisions of section 8, he was prohibited from recording said brand with the state recorder until after October 1, 1905. Carter had perhaps purchased this horse from Morton prior to the passage of said brand law, and Neilson had purchased him from Carter long before Morton was required to record his brand with the state recorder. Supposing Morton had died or gone out of the stock business, or had neglected and refused to record said brand,