JOHNS, J.
"We do not deem it necessary to analyze the evidence. If the proof of ownership of the steer is sufficient, the testimony is ample to sustain the conviction.
The old law often.resulted in a confusion of brands and sometimes two persons claimed to own the same animal by virtue of the same brand, and no one had an exclusive, vested property right in any brand; to avoid which, the legislature in 1915 enacted the law providing “for a State Recorder of Brands and the manner of and fees for recording and transferring brands”: Laws 1915, Chapter 33, page 43. Excerpts from this enactment follow:
“Section 1. The State Veterinarian shall be ex-officio Recorder of Brands.
“Section 2. No brand or brand similar thereto shall be used by more than one person, firm, association or corporation nor shall any brand be recorded in this State elsewhere than in the office of the State Veterinarian.
“Section 3. No evidence of ownership of stock by brands or for the purpose of identification shall be permitted in any court of this State unless the brand shall have been recorded as provided in this Act.
“Section 4. On and after the passage of this Act any person, firm, association or corporation desiring to adopt any brand shall make and sign a certificate setting forth a facsimile and description of the brand giving definitely its location on the animal, together with a statement of the desire to adopt the same and shall file the same with the State Veterinarian who shall record the same in a book kept by him for that [14]*14purpose and issue a certificate to the person,, firm, association or corporation adopting the same and from and after the issuance of such, certificate the person, firm, corporation or association shall have the exclusive right to use such brand within the State. Such person, association or corporation upon filing a brand shall pay to the State Veterinarian for recording the same a fee of $1.00; and provided, that all applications to have brands recorded shall be held by said State Veterinarian for the period of sixty days after this Act goes into effect before the same are recorded and that in the event two or more persons, firms, associations or corporations make application to have the same brand recorded, the one who has had said brand recorded in any county in this State for the greatest length of time shall be entitled to have said brand recorded with the State Veterinarian. The evidence of the recoi*d in such county shall be furnished by a certificate of the County Clerk; and provided further, that the State Veterinarian shall not file or record any brand if the same has already been filed or recorded by him in favor of some other person, firm, association or corporation but shall return such fee and facsimile to the person, firm, association or corporation sending the same. ’ ’
Section 6 declares that:
“Any brand recorded in compliance with the requirements of this Act shall be the property of the person, firm, association or corporation causing such record to be made and shall be subject to sale, assignment, transfer, devise and descent as personal property.”
Section 8 provides that:
“In all suits at law or in equity, or in any criminal proceedings when the title or right of possession is involved, the brand of any animal shall be prima facie evidence that the animal belongs to the owner or owners of the brand, and that such owner is entitled to [15]*15the possession of the said animal at the time of the action; provided, that snch brand has been duly recorded as provided by law. * * ”
1. The act of 1915 was followed by another law passed by the legislature in 1917: Laws 1917, Chapter 132, page 170, entitled:
“An Act.
“Making it a crime for any person to brand, or cause to be branded, a horse, gelding, mare, mule, ass, jenny, foal, bull, steer, cow or calf, without first having such brand recorded as required by law,”
—and providing penalties for its violation. The whole purpose and intent of , this legislation was to provide for the recording of brands, to create an exclusive ownership of and a vested right in a particular brand after it had been recorded as therein specified, and to prevent any other person from claiming or asserting any right to such recorded brand, to establish prima facie ownership and right of possession of the owner of such a brand in or to any animal marked with such brand, and to declare incompetent any parol evidence of the ownership of a recorded brand. The fees for recording the brand and obtaining the certificate are nominal, and the law is simple, definite and certain in its application.
The law is substantially copied from a similar statute of the State of Idaho, and in its construction the Supreme Court of that state laid down this rule in the syllabus of the opinion in State v. Dunn, 13 Idaho, 9 (88 Pac. 235):
‘ ‘ One who has failed to record his brand as required by the provisions of the statute must prove his ownership of the animal on which an unrecorded brand is found in the same manner as he would prove his ownership of any other personal property or of an unbranded animal.”
[16]*16The opinion in that case says :
“It was evidently intended to enforce obedience to the statute by excluding all other methods of proving ■ownership of a brand than by a compliance with the statute. Of course, it is no more difficult now than it ever has been to prove ownership in an unbranded animal, and this statute puts the owner of an animal branded with an unrecorded brand in the same position with reference to proof of its ownership as if it had no brand on it at all.”
1 This court in the case of State v. Randolph, 85 Or. 172 (166 Pac. 555), construing the act of 1915 above referred to, in an opinion by Mr. Justice Harris, said:
1 “Both the old and the new law make a recorded •brand prima facie evidence that the owner of the brand owns the animal upon which the brand is found. Both laws prohibit proof of ownership of an animal by proof of the use of an unrecorded brand. The old •law did not prohibit evidence of the use of an unrecorded brand to prove identity, but the new law does prohibit a party from offering evidence of an unrecorded brand for the purpose of identifying an animal. ’ ’
The law was intended to prevent and punish the use of a recorded brand by another and to induce owners of livestock to record their brands, to make such recorded brands a species of property right, to define and protect such property right, to constitute the owner of a recorded brand the prima facie owner of any animal found marked with such recorded brand, to obviate confusion and the dual claim of ownership of the same brand, and to simplify the proof of ownership in both civil and criminal cases.
2, 3. The certificate of the State Veterinarian vests in any person who has complied with the law the exclusive right to the use of the recorded brand and that [17]*17right carries with it the prima facie ownership and right to the possession of any animal which is branded with snch recorded brand.
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JOHNS, J.
"We do not deem it necessary to analyze the evidence. If the proof of ownership of the steer is sufficient, the testimony is ample to sustain the conviction.
The old law often.resulted in a confusion of brands and sometimes two persons claimed to own the same animal by virtue of the same brand, and no one had an exclusive, vested property right in any brand; to avoid which, the legislature in 1915 enacted the law providing “for a State Recorder of Brands and the manner of and fees for recording and transferring brands”: Laws 1915, Chapter 33, page 43. Excerpts from this enactment follow:
“Section 1. The State Veterinarian shall be ex-officio Recorder of Brands.
“Section 2. No brand or brand similar thereto shall be used by more than one person, firm, association or corporation nor shall any brand be recorded in this State elsewhere than in the office of the State Veterinarian.
“Section 3. No evidence of ownership of stock by brands or for the purpose of identification shall be permitted in any court of this State unless the brand shall have been recorded as provided in this Act.
“Section 4. On and after the passage of this Act any person, firm, association or corporation desiring to adopt any brand shall make and sign a certificate setting forth a facsimile and description of the brand giving definitely its location on the animal, together with a statement of the desire to adopt the same and shall file the same with the State Veterinarian who shall record the same in a book kept by him for that [14]*14purpose and issue a certificate to the person,, firm, association or corporation adopting the same and from and after the issuance of such, certificate the person, firm, corporation or association shall have the exclusive right to use such brand within the State. Such person, association or corporation upon filing a brand shall pay to the State Veterinarian for recording the same a fee of $1.00; and provided, that all applications to have brands recorded shall be held by said State Veterinarian for the period of sixty days after this Act goes into effect before the same are recorded and that in the event two or more persons, firms, associations or corporations make application to have the same brand recorded, the one who has had said brand recorded in any county in this State for the greatest length of time shall be entitled to have said brand recorded with the State Veterinarian. The evidence of the recoi*d in such county shall be furnished by a certificate of the County Clerk; and provided further, that the State Veterinarian shall not file or record any brand if the same has already been filed or recorded by him in favor of some other person, firm, association or corporation but shall return such fee and facsimile to the person, firm, association or corporation sending the same. ’ ’
Section 6 declares that:
“Any brand recorded in compliance with the requirements of this Act shall be the property of the person, firm, association or corporation causing such record to be made and shall be subject to sale, assignment, transfer, devise and descent as personal property.”
Section 8 provides that:
“In all suits at law or in equity, or in any criminal proceedings when the title or right of possession is involved, the brand of any animal shall be prima facie evidence that the animal belongs to the owner or owners of the brand, and that such owner is entitled to [15]*15the possession of the said animal at the time of the action; provided, that snch brand has been duly recorded as provided by law. * * ”
1. The act of 1915 was followed by another law passed by the legislature in 1917: Laws 1917, Chapter 132, page 170, entitled:
“An Act.
“Making it a crime for any person to brand, or cause to be branded, a horse, gelding, mare, mule, ass, jenny, foal, bull, steer, cow or calf, without first having such brand recorded as required by law,”
—and providing penalties for its violation. The whole purpose and intent of , this legislation was to provide for the recording of brands, to create an exclusive ownership of and a vested right in a particular brand after it had been recorded as therein specified, and to prevent any other person from claiming or asserting any right to such recorded brand, to establish prima facie ownership and right of possession of the owner of such a brand in or to any animal marked with such brand, and to declare incompetent any parol evidence of the ownership of a recorded brand. The fees for recording the brand and obtaining the certificate are nominal, and the law is simple, definite and certain in its application.
The law is substantially copied from a similar statute of the State of Idaho, and in its construction the Supreme Court of that state laid down this rule in the syllabus of the opinion in State v. Dunn, 13 Idaho, 9 (88 Pac. 235):
‘ ‘ One who has failed to record his brand as required by the provisions of the statute must prove his ownership of the animal on which an unrecorded brand is found in the same manner as he would prove his ownership of any other personal property or of an unbranded animal.”
[16]*16The opinion in that case says :
“It was evidently intended to enforce obedience to the statute by excluding all other methods of proving ■ownership of a brand than by a compliance with the statute. Of course, it is no more difficult now than it ever has been to prove ownership in an unbranded animal, and this statute puts the owner of an animal branded with an unrecorded brand in the same position with reference to proof of its ownership as if it had no brand on it at all.”
1 This court in the case of State v. Randolph, 85 Or. 172 (166 Pac. 555), construing the act of 1915 above referred to, in an opinion by Mr. Justice Harris, said:
1 “Both the old and the new law make a recorded •brand prima facie evidence that the owner of the brand owns the animal upon which the brand is found. Both laws prohibit proof of ownership of an animal by proof of the use of an unrecorded brand. The old •law did not prohibit evidence of the use of an unrecorded brand to prove identity, but the new law does prohibit a party from offering evidence of an unrecorded brand for the purpose of identifying an animal. ’ ’
The law was intended to prevent and punish the use of a recorded brand by another and to induce owners of livestock to record their brands, to make such recorded brands a species of property right, to define and protect such property right, to constitute the owner of a recorded brand the prima facie owner of any animal found marked with such recorded brand, to obviate confusion and the dual claim of ownership of the same brand, and to simplify the proof of ownership in both civil and criminal cases.
2, 3. The certificate of the State Veterinarian vests in any person who has complied with the law the exclusive right to the use of the recorded brand and that [17]*17right carries with it the prima facie ownership and right to the possession of any animal which is branded with snch recorded brand. Proof of the right to the use of such brand may be made by the production of the original certificate issued by the State Veterinarian or a copy thereof certified by that officer. This is very simple and in all ordinary cases where the brand on an animal corresponds with the recorded brand and the owner of the recorded brand is alleged to be the owner of the animal, the certificate mentioned or the certified copy thereof will be sufficient evidence to sustain the allegation of ownership. But where the brand has not been recorded as the law provides, and the ownership of the brand on the animal is in one person, while the indictment charges the ownership of the animal to be in another, then the identification of the animal or the proof of ownership must be by evidence exclusive of the brand itself. The law does not prohibit testimony as to the ownership or identification of an unbranded animal or of an animal marked with an unrecorded brand, bpt it does prohibit any ‘ ‘ evidence of ownership of stock by brands or for the purpose of identification” of an animal unless the brand upon it shall have been recorded as the act provides.
4. Upon the question of ownership, Clarence R. Harvey, a witness for the state, after testifying as to the size, color, odd-shaped head and the red spot under the left eye, of the steer, and that he first saw the animal “along the fore part of last August,” continued as follows:
“Q. You mean to say to this jury that you can examine an animal out on the range and look at him without anybody telling you, and you can tell whose animal he is?
[18]*18“A. Sure; if be is marked and branded.
“Q. Then how do you identify it as bis animal other than from tbe brand?
“A. Well, I didn’t know it was bis animal until I •looked at tbe brand. * *
“Q. And tbe only way you knew it was Houston’s was by the brand?
“A. Yes, sir.”
It appears from tbe testimony of J. T. Houston, tbe alleged owner of tbe steer, that be was an experienced cattleman, owning at tbe time of tbe trial about 300 bead of cattle which be put ‘ ‘ out on tbe range in the spring and gathered them in, in tbe fall.” He described tbe particular steer in question as having a white face, white feet, white belly and white on bis under parts and a red spot under his left eye. On cross-examination be testified as follows:
“Q. How many did you buy at tbe same time you bought him?
“A. Two hundred and eighty-five.
“Q. And you singled this one out particularly, did-you?
“A. Not at that timé.
“Q. When-is tbe first time you noticed him particularly?
“A. When I seen him with Warner’s cattle.
“Q. How did you know at that time be was your animal?
“A. I knew from the'brand and marks.
“Q. Just a moment: — Have you got your brand recorded?
“A. Yes, sir.
“Q. Recorded in your name?
“A. Recorded in my wife’s name.
“Q. You haven’t got tbe brand recorded in your name yet?
■ “A. No, sir.
[19]*19“Q. That is the only way yon knew that steer, was by the brand?
“A. Yes, sir.”
There is no testimony that Houston’s brand was ever filed or recorded and Houston and Harvey were the only witnesses who testified for the state as to the ownership of the steer; and, when analyzed, their testimony conclusively shows that each of them identified the steer as the property of Houston by means of the brand only. "While it is true, as the trial court-said, that the testimony about the brand was brought out on cross-examination, it is also true that it was elicited on the proper cross-examination of the state’s own witnesses, and that all of the testimony as to identification and ownership of the animal was founded upon a brand which was not recorded in the name of the alleged owner. • There is no competent evidence which tends to show that J. T. Houston was the owner of any brand, and while he testifies that the steer was branded with a brand which was recorded in his wife’s name, all of such evidence was parol. Section 3 of the act of 1915 specifically provides that “no evidence of ownership of stock by brands or for the purpose of identification shall be permitted in any court of this state, unless the brand shall have been recorded as provided in this act”; and Section 8 declares that “parol evidence shall be inadmissible to prove the ownership of a brand.” Yet there is nothing but parol evidence as to either the ownership or the identification of the steer by brand, or as to the ownership of the brand itself.
5. After correctly charging the jury as to “the testimony relative to brands,” the trial court further instructed the jury as follows:
[20]*20‘ ‘I might say in this connection that if there was any testimony here relative to brand, it was admitted before you gentlemen as a distinctive mark, a mark the same as any other mark that might have been found upon the animal. It was not introduced before you, if it was introduced, for the purpose of proving the identity of the brand, or for the purpose of proving the identity of the brand on the animal, or the ownership of the brand. That is not before you. The brand is not in question, in so far as the state is concerned in this case. ’ ’
This statement is in conflict with the construction of Section 3 of the act of 1915 by this court in the case of State v. Randolph, 85 Or. 172 (166 Pac. 555), and we think it was prejudicial error.
The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed and Remanded.
Benson and Harris, JJ., concur.