People v. Strombeck

ANGELLOTTI, J.

An information was presented against defendant, wherein it was charged that he “did willfully, unlawfully, and feloniously mark a certain domestic animal, to wit: A stud colt, belonging to one Thomas Beasore, by then and there slitting the ears of said animal with intent thereby to prevent identification thereof by the true owner, to wit: the said Thomas Beasore.” Having been found guilty by a jury, and adjudged to suffer imprisonment in the state prison for two years, he has appealed from the judgment and from an order denying his motion for a new trial.

1. The information states a public offense under the provisions of section 357 of the Penal Code. That section is as follows: “Every person who marks or brands, alters, or defaces the mark or brand of any horse, mare, colt, jack, jen

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net, mule, bull, ox, steer, cow, or calf belonging to another, with intent thereby to steal the same, or to prevent identification thereof by the true owner, is punishable by imprisonment in the state’s prison for not less than one nor more than five years.”

Under its terms one who in any way marks any animal therein named belonging to another, with intent thereby to prevent identification thereof by the true owner, is guilty of a felony. It can make no difference that the mark placed on the animal is not of a character usually adopted for the purpose of indicating ownership, or that it may not accomplish the purpose of preventing identification. These are matters that may properly weigh with the jury in determining as to the intent with which the marking was done. It is the placing of any mark on such an animal, with the intent thereby to prevent identification by the true owner, that constitutes the crime.

That one who slits the ears of a horse or colt thereby “marks” the same within the ordinary meaning of that word is clear.' He thereby places some visible sign or impression on the animal which to some extent changes its natural appearance, attracts the attention, and conveys some information or intimation. That such a mark might tend to impede the owner of the animal in the identification thereof is likewise clear. The statutes recognize that such a mark might be legally adopted as a mark to indicate ownership, for they expressly provide that no person must use a mark “by cutting off the ear or by cutting the ear on both sides to a point.” (Pol. Code., sec. 3171.) But it is immaterial in this connection whether the mark in fact used is such that it might be