AGO Opinion 98030
Unlawful Branding of Cattle
DATE: July 13, 1998
SUBJECT: Unlawful Branding of Cattle
REQUEST BY: Wesley Nespor, Greeley County Attorney
WRITTEN BY: Don Stenberg, Attorney General
William L. Howland, Assistant Attorney General
You have requested our opinion regarding unlawful branding of
cattle. More specifically, you question whether the criminal act
is the unlawful branding itself or maintenance of a herd which has
been unlawfully branded.
Neb. Rev. Stat. § 54-101(1) (1993) provides:
A brand shall mean an identification mark that is applied
to the hide of a live animal by a hot iron on either side
in any one of three locations, the shoulder, ribs, or
Neb. Rev. Stat. § 54-101(31) (1993) provides:
Freeze brand shall mean any such mark or brand that is
created on a live animal in a depigmentation technique,
whereby the pigment-producing cells in the skin of an
animal are destroyed by the application of intense cold
to the skin area[.]
Neb. Rev. Stat. § 54-101.01 (1993) provides:
[I]t shall be unlawful to brand any live animal other
than by the use of a hot iron except that it shall be
permissible to use a freeze brand for year or production
recording brands [emphasis added].
Neb. Rev. Stat. § 54-106 (1993) provides:
It shall be unlawful to use any brand for branding any
horses, cattle, mules, or asses unless the person,
persons, partnership, limited liability company,
association, or corporation using such brand has recorded
that brand with the Nebraska Brand Committee [emphasis
Neb. Rev. Stat. § 54-156 provides that any person or entity
who violates § 54-101.01 or § 54-106 shall be deemed guilty of a
Class II misdemeanor.
Criminal statutes must be strictly construed to ensure that
defendants receive fair warning of what constitutes criminal
conduct. Huddleston v. United States, 415 U.S. 814, 831 (1974);
United States v. Bass, 404 U.S. 336, 348 (1971); United States v.
Speidell, 562 F.2d 1129, 1131-32 n.4 (8th Cir. 1977); State v.
Douglas. 222 Neb. 833, 838 (1986). In criminal trials, the state
must prove each material element beyond a reasonable doubt in order
to convict the defendant of the specific crime charged. State v.
Gorman, 232 Neb. 738, 741 (1989); State v. Scott, 225 Neb. 146, 154
(1987); State v. Breaker, 178 Neb. 887, 895 (1965).
The act of unlawful branding, whether by freeze brand or by
unrecorded brand, has been defined by Nebraska law as a criminal
offense. The possession of an illegally branded animal is not
defined as a crime. The issue then becomes one of proof.
Prosecutions under both Neb. Rev. Stat. §§ 54-101.01 and 54-106 are
dependent upon evidence that the defendent engaged in unlawful
branding. Mere maintenance of a herd of unlawfully branded animals
is not punishable.
William L. Howland
Assistant Attorney General