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AGO Opinion 98030

Unlawful Branding of Cattle
Opinion 98030


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

hip....




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

added].




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.






Sincerely,




DON STENBERG

Attorney General








William L. Howland

Assistant Attorney General