State v. Vickery , 85 N.M. 389 ( 1973 )

SUTIN, Judge

(dissenting).

Section 40A-18-3, N.M.S.A.1953 (2nd Repl. Vol. 6) reads as follows:

Unlawful branding consists of either:

A. branding, marking or causing to be branded or marked any animal, which is the property of another, with any brand not the brand of the owner of the animal;

B. defacing or obliterating any brand or mark upon any animal which is the property of another; or

C. using any brand unless said brand shall have been duly recorded in the office of the cattle sanitary board of New Mexico or the sheep sanitary board of New Mexico, whichever is applicable, and the person holds a certificate from the cattle sanitary board or the sheep sanitary board certifying to the fact of such record.

Whoever commits unlawful branding is guilty of a fourth degree felony. [Emphasis added]

Defendant was indicted under subsection (C) in that defendant “did use a brand which had not been duly recorded in the Office of the Cattle Sanitary Board of New Mexico and did not hold a certificate from the Cattle Sanitary Board of New Mexico certifying to the fact of such brand being recorded.”

Subsection (C) is unconstitutional. For what reason defendant was charged with violation of subsection (C) instead of subsections (A) or (B) will remain an interesting mystery. We are not concerned with the guilt or innocence of the defendant. The sole question to be determined is whether a crime can be committed under subsection (C).

This statute is a condensation of §§ 40-4-11, 40-4-12 and 40-4-15, N.M.S.A.1953 (Vol. 6 Orig.). Its validity is a matter of first impression in New Mexico. The core of subsection (C) is the recordation of “any brand”, for identification. Section 47-9-4, N.M.S.A.1953 (Repl.Vol. 7). The language of subsection (C) has no relatives in branding statutory history which omit identification of the object to be branded.

First, subsection (C) is unconstitutional for vagueness. “The entire statute is set forth because in determining the question of unconstitutional vagueness the statute as a whole must be considered.” State v. Ferris, 80 N.M. 663, 665, 459 P.2d 462, 464 (Ct.App.1969).

“Using any brand”, whatever its nature, regardless of ownership, for whatever reason, upon whatever property, including one’s own private property, honestly, accidentally or mistakenly, used, if not recorded, is a felony. This section omits any reference to animals. We cannot read the words “upon cattle” or “upon sheep” into subsection (C), because “We will not change or limit the wording in a criminal statute in order to construe it against the accused.” State v. Collins, 80 N.M. 499, 502, 458 P.2d 225 (1969).

Subsection (C) is vague, uncertain and indefinite. State v. Diamond, 27 N.M. 477, 202 P. 988, 20 A.L.R. 1527 (1921), cited with approval in Winters v. New York, 333 U.S. 507, 516, 68 S.Ct. 665, 92 L.Ed. 840 (1948); State v. Prince, 52 N.M. 15, 189 P.2d 993 (1948); dissent, State v. McKinley, 53 N.M. 106, 112, 202 P.2d 964 (1949); State v. Thompson, 57 N.M. 459, 260 P.2d 370 (1953); State v. Ferris, supra; State v. Minns, 80 N.M. 269, 454 P.2d 355 (Ct.App.1969); State v. Orzen, 83 N.M. 458, 493 P.2d 768 (Ct.App.1972); dissent, State v. Sanchez, 82 N.M. 585, 588, 484 P.2d 1295 (Ct.App.1971).

Second, subsection (C) is unconstitutional because it is not a reasonable exercise of the police power. It does not seek preservation of the public peace, health, safety, morals, general welfare, prosperity, comfort and convenience, nor injury to others, nor prevention of evil. State v. Lavender, 69 N.M. 220, 365 P.2d 652 (1961); State v. Prince, supra; State v. Dennis, 80 N.M. 262, 454 P.2d 276 (Ct.App.1969); State v. Davis, 80 N.M. 347, 455 P.2d 851 (Ct.App.1969); Skaggs Drug Center v. General Electric Company, 63 N.M. 215, 315 P.2d 967 (1957). All it seeks is recordation of a brand for a fee of $10.00. Section 47-9-8, N.M.S.A.1953 (Repl. Vol. 7,1971 Supp.)

Third, subsection (C) is unconstitutional because it is in violation of Article II, § 4, New Mexico Constitution. It provides in part that :

All persons are born equally free, and have certain natural, inherent and inalienable rights, among which are the rights ... of acquiring, possessing and protecting property ....

Subsection (C) denies a defendant the right to acquire, possess and protect property of any kind because he cannot use any brand he desires for that purpose. This is not a reasonable regulation for the exercise and enjoyment of his constitutional guarantees because subsection (C) provides that “any brand”, not used for cattle, shall be recorded with the cattle sanitary board. Compare, State v. Brooken, 19 N.M. 404, 412, 143 P. 479, L.R.A.1915B 213, Ann. Cas.1916D 136 (1914). The many meanings of “brand” as a noun need not be set forth. “Brands” are used in agriculture and logging as well as animals.

Fourth, subsection (C) is unconstitutional because it is in violation of Article II, § 13, New Mexico Constitution which prohibits cruel and unusual punishment. Subsection (C) is a fourth degree felony. The defendant can be imprisoned in the penitentiary for a term of not less than one year nor more than five years, or sentenced to the payment of a fine of not more than $5,000 or to both such imprisonment and fine in the discretion of the judge. Section 40A-29-3(D), N.M.S.A. 1953 (2nd Repl. Vol. 6).

We should move into a modern concept of cruel and unusual punishment based upon a developing society. What was not cruel and unusual yesterday, may be cruel and unusual today. See Annot. 33 A.L.R. 3rd 335, 349; Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

This penalty arises for failure to record a brand with a state agency. “One may be an offender against it, though he gain nothing and injure nobody.” When a sentence actually imposed for violation of subsection (C) is greater than one which could be imposed for a more serious offense, this type of disparity constitutes a cruel and unusual punishment.

Cruelly beating, multilating, or cruelly killing an animal is only a misdemeanor (40A-18-1), and wilfully and maliciously poisoning, killing or injuring any animal is a misdemeanor (40A-18-2). Negligent arson is a fourth degree felony (40A-17-5(B)). Aggravated assault is a fourth degree felony (40A-3-2). A review of the criminal code shows that a fourth degree felony for failing to record any brand is not related to the gravity of the offense and shocks the moral sense of the community. When this occurs, the punishment falls within the prohibition of Article II, § 13 of the New Mexico Constitution. Workman v. Commonwealth, 429 S.W.2d 374 (Ky.1968), 33 A.L.R.3d 326; Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910).

In the following states, where identification does appear in the statute, the penalty is defined as a misdemeanor. Oklahoma, Chapter 2, Section 4-6; Nebraska, Sections 54-106, 107; Texas, Article 1460, Title 17, Vernon’s Ann.P.C.; Wyoming, Sections 11-335, 336, Section 11-332, no penalty provision; Montana, Sections 46-603, 608; Colorado, Sections 8-2-5 (2), (3); Arizona, Section 24-209; Kansas, Section 47-420; Utah, Section 4-13^1, no specific penalty; Nevada, Sections 564.020, 564.-150; Oregon, Sections 604.220, 604-992; Washington, Sections 15.52.090, 15.52.330; California Agricultural Code, Section 17702.

The penalty is defined as a felony where branding is done (1) with intent to steal, or to prevent identification by the true owner, (2) is done wilfully or constitutes grand larceny or is done with intent to confuse or commingle animals.

A fourth degree felony for failing to record a brand is cruel and unusual punishment.

This court’s duty is to seek the meaning of the many New Mexico statutes related to branding of livestock. The primary purpose is the identification of livestock. Identification acts as a deterrent to theft. It facilitates separation where range livestock become intermixed. It prevents honest but mistaken claims of ownership. State v. Morton, 158 Kan. 503, 148 P.2d 760 (1944). The only reason for branding ordinary domestic cattle kept in enclosures or buildings is to protect the public where cattle are to be slaughtered for human consumption. Section 47-9-3. The New Mexico livestock board is empowered .

(1) [T]o exercise general regulatory supervision over the livestock industry of this state in order to protect the industry from theft and contagious or infectious diseases and in order to protect the public from diseased or unwholesome meat or meat products. Section 47-23-6, N. M.S.A.1953 (Repl. Vol. 7, 1971 Supp.)

If the legislature desires to make effective the purposes of the statutes, it must direct its criminal offenses on branding to the livestock industry. Subsections (A) and (B) do. Subsection (C) does not.

This case should be dismissed and defendant discharged.