State v. Stone

The district court erred in admitting in evidence over appellant's objection the printed brand book, mentioned in the majority opinion. I do not agree that it was error for the witness Shoemaker to testify that he had been inspector of brands for a period of twenty years and that he had never seen the C running W brand on any livestock. This evidence was admissible to show that such brand was used to conceal a "sleeper," as is customary with cow thieves.

The majority seems to hold that, because no objection was made by appellant to perfectly proper testimony, he waived error in the admission of clearly improper testimony tending to prove the same fact. I am unable to agree to this.

We stated, through Mr. Justice Parker, in State v. Riddle,23 N.M. 600, 170 P. 62, 63:

"The practice of branding a maverick in an unknown or unrecorded brand, which is so formed as to be easily altered, and then permitting the animal to run at large on the open range until all thought of suspicion is past, and then altering the brand upon the animal to conform to the brand of the person practicing this form of deception, is not uncommon in a cattle country, and constitutes a highly systematic attempt to become possessed of the property of another. Such evidence is unquestionably of high probative value, especially in cases like this, where the half circle P brand is so similar to the circle R brand of appellant. That such evidence tends to prejudice the appellant is also unquestioned, but the question is whether the trial court erred in admitting it."

The evidence was highly prejudicial. The jury might not have believed Shoemaker's testimony, or doubted that it established the fact attempted to be proved, to wit, that there was no C running W brand recorded. But the brand book was conclusive evidence that there was no such recorded brand in the State of New Mexico as the C running W, and that, therefore, it was used in this instance by a cow thief to hide his handiwork. The case should be reversed.