On Rehearing.
(188 Pac. 702.)
In Bane.
This case has already been once before the court (182 Pac. 149), and a reversal was then ordered, upon the ground that there was no sufficient evidence to support the verdict.
There was a petition for a rehearing, the district attorneys for the districts of eastern Oregon generally joining therein as friends of the court. The petition was granted, and we have again carefully considered the questions involved, as presented at the second hearing.
Original Opinion Reaffirmed With Modification.
Mr. George M. Brown, Attorney General, Mr. G. H. Leonard, Mr. B. I. Kestor, District Attorney, and Mr. T. 8. McKinney, District Attorney, for the petition, with oral arguments by Mr. Brown, Mr. Kestor and Mr. Leonard.
Messrs. McCamant, Bronaugh $ Thompson and Mr. Herbert P. Welsh, contra, with an .oral argument by Mr. W. Lair Thompson.
BENNETT, J.The contention on behalf of the state, as we understand it, is that the mere fact that one man’s brand is found upon another man’s animal, is of itself, sufficient to support a conviction of the larceny, without any evidence direct or circumstantial *631as to who placed the brand upon the animal, or connecting the defendant with the branding in any way.
There was nothing presented at either hearing which would seem to us to justify adopting so extreme a doctrine or one so contrary to all the elementary principles of criminal law.
The statute in relation to brands has reference to lawful branding — not to unlawful. It makes the brand primary evidence of ownership. There is nothing in its terms to raise the presumption that an unlawful and larcenous brand was placed upon an animal by any particular person.
Any person who rides upon a range has it in his power to brand a stolen animal with the brand of a third person or with any brand he sees fit. All he needs to do so is a horse, a rope, and a running-iron, or a stamp brand, all of which, are easy to manufacture or obtain.
It is a well-known fact that owners of large bands of stock do not and cannot, in the nature of the business, do all the branding themselves. Many of them do not ride at all, or do any branding at all, but leave this entirely to their subordinates, who go out upon the range and gather and brand anything which they may believe to belong to their employer. These employees are subject to constant change. Some are discharged with more or less frequency, and others employed in their place. Often they are here to-day and gone to-morrow.
"Where a cattleman owns a considerable number, it is utterly impossible in most cases to trace or identify his cattle, except by brand. If the mere presence of his brand upon the wrong cow were alone enough to convict him of larceny, it would be easy for any dis*632satisfied or discharged employee or any unfriendly and vindictive neighbor to send him to the penitentiary; and this would be especially true if he happened to be a man who was generally disliked or distrusted in the community.
We fully realize the importance of the livestock business in the sections of the state where there is still a public range and the loss which such industry suffers each year from the depredations of stock thieves and cattle rustlers in such locations. The very nature of the business, where stock run upon the common range and are only identified by brands and earmarks, makes the commission of such crimes easy and their detection difficult and sometimes impossible. With the prosecution and conviction of the guilty in such cases we have the fullest sympathy.
5. But the law must have regard to the protection of the innocent as well as the punishment of the guilty. We know of no case in which it has been held that the finding of one man’s brand upon another man’s cow is alone sufficient to justify a conviction, and we are not willing to create such a precedent.
We are not willing to write a new doctrine, contrary to all the elementary principles of the criminal law, and which will always imperil the innocent, in order to sometimes reach the guilty.
6. We must not be understood as holding that the fact that one man’s brand is found upon another’s animal, with or without a disfiguration of the old brands, has no evidentiary value. Such a circumstance of itself arouses the gravest suspicion and is entitled to the careful consideration of a jury. When connected with other evidence, either direct or circumstantial, tending in a substantial way to prove that the *633defendant either placed it there, or authorized or directed the act, it would he entirely sufficient to support a verdict. But there must he such evidence tending to show that the defendant did or authorized the branding, or else a link in the chain is broken and the whole case falls apart.
It seems to be assumed by the prosecution in this case that, if there is any competent evidence, however inconclusive — any circumstance, however remote— which a jury would have a right to consider, if submitted along with other evidence — that there is “evidence to support the verdict” under our constitutional provision and therefore the verdict must stand.
7. A little consideration will, we think, demonstrate that this cannot be a correct construction of the constitutional provision. Evidence that the crime in question has actually been committed (by someone) is always and necessarily competent and admissible, in a prosecution against any particular person — yet if the state stopped there and offered no evidence to connect the defendant with the crime, no one would contend (although there was some competent evidence before the jury) that a verdict of guilty could be sustained. It is not merely “evidence” which can invoke the constitutional provision but evidence “to support a verdict.”
This question was carefully considered by the court in Schneider v. Tapfer, 92 Or. 520 (180 Pac. 107), in which it is said:
“We think, however, the constitutional provision did not intend to go further than to prohibit the court from re-weighing the evidence and revising the verdict of the jury in cases where there was conflicting evidence, or substantial evidence, to sustain the verdict. * * We hold that evidence merely suggesting a *634suspicion or possibility, does not bring the case within the constitutional amendment, but that there must be substantial evidence upon which a reasonable man might reach a reasonable verdict.”
And Mr. Justice Harris says in an opinion concurring in the result:
“I acquiesce * * in the announcement that a verdict cannot be permitted to stand, if the evidence offered in support of it does no more than to raise a suspicion.”
In Martina v. Oregon-Wash. R. & N. Co., 73 Or. 283 (144 Pac. 104), Mr. Justice Ramsey, long after this constitutional provision was adopted, said:
“In order that a verdict may be supported by the evidence, there must be some legal evidence tending to prove every material fact in issue. ’ ’
Here one of the material facts was that the defendant, either by himself or another, did place the brand in question on the animals described in the indictment, since there was no other proof of any taking.
In this connection Section 697, L. O. L., which has never been changed or amended, is particularly pertinent to criminal oases. It provides:
“That evidence is deemed satisfactory, which ordinarily produce moral certainty or conviction in an unprejudiced mind. Such evidence alone will justify a verdict. Evidence less than this is denominated insufficient evidence. ’ ’
8. It is strongly urged that the circumstances under which the animals were found; the fact that so large a bunch of cattle (about 300) were found in one small valley; that they were upon a range used by the defendant as a sheep range; that the greater number of the cattle in the bunch belonged to the defendant; *635that Silvers, the employee of defendant, was met in the vicinity coming from that direction, and that defendant had sent him np there to bnild a camp and wean the calves — connected the defendant with the branding. But it must be remembered that, according to the undisputed evidence of the state’s own witnesses, the defendant had no exclusive cattle privilege on the range in question, but, on the contrary, it was open to everyone’s cattle and was used in common by all.
If these animals had been found in defendant’s immediate possession and control, as in his bam or sheds, or even, in some circumstances, in his field, a different question might arise, and there would, no doubt, be a presumption or inference that'he was responsible for the disfigurement and rebranding. The case would then be analogous to the case offered on behalf of the state, as an illustration, where stolen property is found in the room occupied by a defendant. Here there was no such immediate possession or control.
If we assume (what was not proven but is probably true) that so large a number of cattle would not ordinarily be likely to congregate voluntarily in so small a place, then there'might be a fair inference, from the facts of their being found there together with no one else in the vicinity, and that Silvers was met so near and coming from that direction, that he had gathered or rounded them up. This, however, would not of itself be anything unusual, nor would it show any exercise of ownership or possession of every animal in the bunch. It is a well-known fact in a cattle country, that it is impracticable, if not impossible, for a man who has a large number of cattle upon the range mixed with those of his neighbors, to separate them *636one by one, as he finds them upon th® range. It is the universal custom to round up everything, either for the purpose of inspection or separation, and then, when they are gathered in a bunch, they may be inspected, or the owner’s cattle may be separated from the others, if that is the purpose of the round up.
In this case the undisputed evidence is, that the greater number of the cattle in this bunch bore the defendant’s brands. But from one fifth to one fourth of them belonged to other neighbors, who had cattle upon this same range. No doubt the fact that the cattle were found gathered in one place, and with so many of defendant’s cattle, was a circumstance to be considered by the jury, together with other evidence, if any had been offered, tending to connect the defendant with the re-branding; but it was not such an exclusive possession as would justify the presumption of theft by the defendant. If the cattle had been found with the brands freshly burned or their ears and dewlaps fresh and bleeding from the disfigurement, there might have been a just inference, from the circumstances, and the fact that Silvers was met coming from the immediate vicinity, that he was the party who had made the changes. But here, as we read the record, there was no claim that the disfigurement was immediately fresh. The evidence seems to show that the blotch designated as the “frying-pan brand” had been, probably, placed on the animal a few weeks before. One other brand was thought to have been made that season, and the remainder were old brands made one or two years before.
9. It must be remembered also, that even if Silvers had been proven to have done the rebranding, it would still have been necessary to connect the defendant with *637the act, and show by direct or circumstantial evidence that he authorized or directed it, or in some way participated therein before he could be convicted of the crime. Authority to commit a criminal act can never be inferred from the mere fact that the alleged agent is in the lawful employ of the defendant.
In 16 C. J., page 123, Section 106, the law, in relation to this is epitomized as follows:
“The civil doctrine that a principal is bound by the acts of his agent within the scope of the agent’s authority has no application to criminal law.' Therefore, the mere relation of principal and agent or of master and servant does not render the principal or master criminally liable for the acts of his agent or servant, although done in the course of his employment; it must be shown that they were directed or authorized by him. Moreover, a clear case must be shown.”
The only other fact which is claimed to strengthen the case against the defendant is the fact that, when the cattle were gathered in the corral at Lakeview, he said, “Some of them are mine,” and that on the witness-stand the defendant testified that he thought two of the animals, and possibly three, were his because his brand upon them seemed to him to be the oldest. He did not claim to know or identify the particular animals by their general description, and only claimed them upon the ground that his brand seemed to be the older.
One of these two, the frying-pan cow, was not proven in any way to belong to the persons charged in the indictment, and there was no evidence whatever that she had any other brand than the brand of the defendant, the points of which seemed to project below the blotch. The other one was a steer branded in defendant’s. brand above which was a comparatively *638fresh brand designated as a “lazy 18.” There was some evidence that there had been another brand under the “18,” but no witness was able to speak with certainty as to what it had been. The nearest that any one came to identifying the brand underneath the “18” was the witness Hotchkiss, who testified:
“I don’t know what else was under this 18; I think it was an ‘FG,’ but don’t know whether it was or not.”
And on cross-examination:
“Q. Could you distinguish any brand under that 18, or what were the indications to you that there was another brand there? Could you trace it out or what?
“A. No, I don’t believe I could.”
All the other witnesses for the prosecution testified flatly that they could not tell what brand was underneath the “lazy 18,” and all agreed that the defendant’s brand was haired over and an older brand than the “18.” The owner of the “18” brand (if there was any such brand in the neighborhood) was not called as a witness, and there was no evidence that there was no such brand thereabout.
10. We do not think that under the circumstances, the claim of the defendant that he thought some of these cattle were his, was sufficient evidence to connect him with any certainty with the disfigurement of the brands. There was no evidence that the defendant himself ever rode upon the range, or did the branding of his cattle himself, and the only evidence in that regard, is his own evidence that he did not. There is no evidence that he had ever been in the vicinity where the cattel were found, except his own statement that he was up there once, a few weeks before these cattle were taken off of the range. There is no evidence that he ever sold or disposed of any of them, *639or attempted to do so. No evidence that he ever had them in his pastures in the fall or in his feed lots in the winter. There is no circumstance which even tends to show that he was present at the branding of any of these animals or authorized or directed it. There is nothing but the mere fact that the animals were found running with some of his cattle, together with other cattle, upon a range free to anyone who wished to use it, and that someone had placed a brand belonging to him thereon.
After very full and careful consideration, we can see no way by which we can lawfully and consistently avoid reaffirming the conclusion reached at the original hearing, that the chain of evidence offered by the prosecution has failed in an important link, and does not prove that the defendant was the person who did the branding in question. In short, while the evidence is ample to create and support a grave suspicion against the defendant, it does not point to him with the unerring finger of moral certainty, which will alone sustain a conviction in a criminal case. There is one expression, however, in the original opinion which, upon more careful consideration, we think should be modified.
11. Where there are two brands upon an animal, one older than the other, we think the natural presumption from the brands alone would be that the ownership of the animal belonged to the older brand, and that ordinarily under such conditions the burden would be upon the owner of the later brand to establish his right to put his brand upon the animal. The statute in relation to brands is silent as to this matter, and in our view it should be decided in accordance with the analogies of the common law. The first brand establishes ownership at one time and we think the presumption *640of continuance should apply until a change of ownership or other evidence of ownership'is shown. It is much like proof of ownership by possession. It is well settled that, where two parties depend upon possession as proof of ownership the older possession prevails over present or later possession.
In Lawson on Presumptive Evidence, page 492, the rule is laid down as follows:
“The possession of real or personal property raises a presumption of title. ’ ’
And in the same work at page 210, it is said:
“Where a person is proved to be the owner of personal property with the present right of possession, the presumption is that he continues to be the owner until there is evidence that he has parted with that ownership.”
See, also, Magee v. Scott, 9 Cush. (Mass.), 148 (55 Am. Dec. 49), and Davis v. Insurance Co., 36 N. Y. Supp. 792 (15 Misc. Rep. 263).
If this were not the rule in relation to branded animals, it would be very disturbing to the title to such property in the range country. There, as a rule, no man knows his animals except by the brand, and if a thief or wrongdoer could neutralize the evidence of the previous brand by putting on a fresh one, it would seldom be possible for the true owner to prove his ownership. If a large owner was occasionally selling some of his cattle, and someone should place a brand upon some of his range stock, he would be compelled to prove the negative that he had not sold the particular animal, which would generally be impossible. If a cattle owner should die, any evilly disposed person might put a fresh brand on half his bunch, and it would be impossible to prove that the deceased owner *641liad not, at some time, sold the animals. The purchaser, on the other hand, can generally easily prove the affirmative fact that he has purchased the stock in question, and, if necessary, he can always protect himself by taking a bill of sale.
The first brand upon range cattle, is almost invariably placed upon them when they are calves at their mother’s side, and when the ownership can be easily ascertained. We think the better rule, and the one followed by cattlemen generally, is that there is a presumption in favor of the first brand. Of course, this is a disputable presumption and will yield readily to either direct or circumstantial evidence. As was said in the original opinion, the evidence was entirely sufficient to go to the jury as to the ownership of most of the cattle involved in this case.
We think the case should be sent back for a new trial in the event that the district attorney shall find himself able to strengthen his case. We will therefore proceed to notice the other claims of error which are likely to arise upon a new trial, and which are not sufficiently covered by what has already been said.
12. We do not think there was any error in permitting the witnesses for the state to testify as experts, in relation to the growth of brands with the growth of the animal, and the effect of a second burn upon the old scar. These witnesses were old cattlemen of long experience and the weight of their testimony was for the jury. There was no error in permitting Dick to testify as to the brands upon the other animals in the bunch where these were found.
We think there was no reversible error in giving the instruction in relation to the testimony of defendant. It might have been just as well if the court had *642left out the word “only” from such instruction, but we think on the whole the charge was within the rule established by the decisions of this court: State v. Clements, 15 Or. 237 (14 Pac. 410); State v. Bartlett, 50 Or. 440 (93 Pac. 243, 126 Am. St. Rep. 751, 19 L. R. A. (N. S.) 802).
13. The court instructed the jury as follows:
“If you believe from the evidence and beyond a reasonable doubt, that the William Hanley Company is the owner of the brand ‘LY’ placed on the left hip of an animal, a record of which has been introduced in evidence, and that while it was so the owner of such brand, it placed the same on any of the animals mentioned in the indictment, then I charge you that it is sufficient evidence that the animal or animals so bearing said brand, is the property of said William Hanley Company, unless there is some other evidence to the contrary.”
—and gave a like charge as to the cattle alleged to have been the property of the Eastern Oregon Live Stock Company. We are of the opinion that this instruction went too far and invaded the province of the jury.
■The law in relation to brands to which we have already alluded, makes the brand of a stock owner prima fade evidence of his ownership, and such evidence is sufficient to go to the jury. But whether it is sufficient under all circumstances to satisfy the jury beyond a reasonable doubt, is a matter for it to decide. Nearly all of the animals in question here had two brands and as to some of them, at least, there was a controversy as to which was placed there first. Under these circumstances the court ought not to have told the jury that, if the Hanley Company “placed its brand on any of the animals, it is sufficient evidence” that the animals belonged to that company. The court *643should have told the jury that such evidence was sufficient to justify a verdict in that regard, if, under all the circumstances, it satisfied them beyond a reasonable doubt of the ownership.
There was no error in refusing charge No. 6, which was entirely too broad.
The seventh instruction asked for by the defendant is elementary, and we see no reason why it should not have been given, although it may possibly have been sufficiently covered by the general charge.
14. The ninth instruction asked by the defendant was too broad and was properly refused, and the same is true of No. 10. These instructions are based upon the idea, that because an unrecent or unexclusive possession of stolen goods is not sufficient alone to justify a conviction, such facts cannot be considered by the jury at all. On the contrary, such facts are obviously circumstances which the jury had a right to consider, although they are not sufficient alone to raise a presumption of guilt.
The sixteenth instruction asked by the defendant was too broad and was properly refused.
Original Opinion Reaffirmed With Modification.
Benson, J., took no part in the consideration of this case.