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 [New Mexico livestock board] or the sheep sanitary board of New Mexico [New Mexico livestock board], whichever is applicable, and the person holds a certificate from the cattle sanitary board [New Mexico livestock board] or the sheep sanitary board [New Mexico livestock board] certifying to the fact of such record.

Whoever commits unlawful branding is guilty of a fourth degree felony.

History: 1953 Comp., § 40A-18-3, enacted by Laws 1963, ch. 303, § 18-3.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law. Section 47-2-1, 1953 Comp., establishing the cattle sanitary board, and 47-8-2, 1953 Comp., establishing the sheep sanitary board and related sections, were repealed by Laws 1967, ch. 213, § 12. Section 77-2-2 NMSA 1978 created the New Mexico livestock board, and provided that reference to the above-mentioned sanitary boards shall mean the livestock board.

Cross references. — For description of bovine animal in a criminal indictment, see 31-7-1 NMSA 1978.

For Livestock Code, see 77-2-1 NMSA 1978 et seq.

For provisions regarding the branding of animals, and penalties for violation thereof, see 77-9-3 to 77-9-5 NMSA 1978.

Due process. — Subsection C is a reasonable exercise of the police power of New Mexico; in the light of its purpose, its application to innocent acts and the felony penalty it provides do not violate due process requirements. State v. Vickery, 1973-NMCA-091, 85 N.M. 389, 512 P.2d 962, cert. denied, 85 N.M. 380, 512 P.2d 953.

Equal protection. — As 77-9-4 NMSA 1978 applies to branding requirements generally while Subsection C of this section applies specifically to the use of an unrecorded brand, one section does not provide a different penalty for the identical act prohibited by the other, and hence these sections do not violate the requirement of equal protection of the laws. State v. Vickery, 1973-NMCA-091, 85 N.M. 389, 512 P.2d 962, cert. denied, 85 N.M. 380, 512 P.2d 953.

Purpose of Subsection C is to prevent a kind of theft peculiarly easy of commission and difficult of discovery and punishment, and to afford special protection to the important industry of stockraising. State v. Vickery, 1973-NMCA-091, 85 N.M. 389, 512 P.2d 962, cert. denied, 85 N.M. 380, 512 P.2d 953; State v. Thompson, 1953-NMSC-072, 57 N.M. 459, 260 P.2d 370.

Criminal intent is not element of crime stated in Subsection C. State v. Vickery, 1973-NMCA-091, 85 N.M. 389, 512 P.2d 962, cert. denied, 85 N.M. 380, 512 P.2d 953.

Brand not proof of defendant's ownership. — Proof that calf bore defendant's brand in prosecution for stealing and branding the animal did not constitute prima facie evidence that defendant owned the animal under statute providing that registration in the brand book under seal of the cattle sanitary board (now New Mexico livestock board) constituted prima facie proof that person owning recorded brand was owner of animal branded with such brand. State v. Reed, 1951-NMSC-021, 55 N.M. 231, 230 P.2d 966, cert. denied, 342 U.S. 932, 72 S. Ct. 374, 96 L. Ed. 694 (1952).

Indictment defective. — An indictment under Laws 1919, ch. 57, § 1 (former 40-4-15, 1953 Comp.), prohibiting branding of unmarked animals with mark not the recorded, kept up or running mark or brand of the user, was fatally defective if it failed to allege that the brand was placed upon an unbranded animal. State v. Lopez, 1922-NMSC-061, 28 N.M. 216, 210 P. 567.

Instructions on circumstantial evidence. — Instruction on circumstantial evidence concerning the stealing and unlawful branding of a bull calf was not erroneous because of inclusion of statement "that before you would be authorized to find a verdict of guilty against the defendant where the evidence is circumstantial, the facts and circumstances shown in the evidence must be incompatible upon any reasonable hypothesis with the innocence of the defendant and incapable of explanation upon any reasonable hypothesis other than that of the guilt of the defendant." State v. Reed, 1951-NMSC-021, 55 N.M. 231, 230 P.2d 966, cert. denied, 342 U.S. 932, 72 S. Ct. 374, 96 L. Ed. 694 (1952).

The court was not required to give an instruction on circumstantial evidence which was cumulative. State v. Reed, 1951-NMSC-021, 55 N.M. 231, 230 P.2d 966, cert. denied, 342 U.S. 932, 72 S. Ct. 374, 96 L. Ed. 694 (1952).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 3A C.J.S. Animals §§ 23 to 30.