Allen v. Commonwealth

• Decision Date: 14 May 1912
• Parties: ALLEN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

146 S.W. 762

148 Ky. 327

ALLEN v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 14, 1912

Appeal from Circuit Court, Perry County. Ben Allen was convicted of grand larceny, and he appeals. Affirmed.

H. C Davidson and S. M. Ward, both of Hazard, for appellant.

James Garnett, Atty. Gen., and D. O. Myatt, Asst. Atty. Gen., for the Commonwealth.

CARROLL J.

The appellant was indicted by the grand jury of Perry county for the crime of grand larceny, which is a felony, and upon his trial was found guilty and sentenced to imprisonment in the penitentiary for a term of years. He asks a reversal of the judgment upon the verdict, first, because the evidence was not sufficient to sustain a conviction for grand larceny and, second, because the court orally instructed the jury.

In reference to the first ground, section 1194 of the Kentucky Statutes, defining grand larceny, provides that "persons guilty of larceny of goods, money, chattels or other property of the value of twenty dollars or more, shall be punished by confinement in the penitentiary not less than one nor more than five years." Section 1243 of the Kentucky Statutes defines petit larceny, which is a misdemeanor, as the stealing of property of "less value than twenty dollars."

The prosecuting witness, who was a peddler and had for sale the watch stolen, testified that it cost him $17.50, and that the retail price at which he sold it was $21.50. While a jeweler who was introduced as a witness in behalf of the appellant said that the cost of the stolen watch was $12.50, and the retail price $16.

In cases like this, where the degree of the offense depends upon the value of the property, it often happens that the witnesses will differ as to its value; and, when there is a difference of opinion as to this matter, it is for the jury to form their own conclusion from the evidence as to the value of the property stolen. Evidence of the cost price of an article is not conclusive as to its value; nor, indeed, is evidence as to its selling price. The test by which the degree of guilt of the accused is to be determined is the value of the article at the time it was stolen, and this value is to be arrived at by the jury from a consideration of all the facts and circumstances shown in the evidence. Where the article stolen is in general use, and has what might be called a standard market value, of course the best evidence of the value of such an article is the price at which it sells in the open market. But where the article does not appear to have a standard value in the open market, or its standard value is not shown, the evidence of its value must be arrived at from facts and circumstances testified to by witnesses who qualify themselves to speak as to its value.

Here the witness who had for sale the article stolen testified that its value at the time it was stolen, or, in other words, the price at which he sold it, was $21.50; while another witness testified that the value of watches of like make and character was $16. With the evidence in this condition, we think the jury had the right to say that the value of the article was $20 or more, and to find the accused guilty of grand larceny under instructions telling them that, if they believed the property stolen was of the value of $20 or more, they should find him guilty of grand larceny, and, if it was of less value than $20, they should find him guilty of petit larceny. State v. Finch, 70 Iowa 316, 30 N.W. 578, 59 Am.Rep. 443; Printz v. People, 42 Mich. 144, 3 N.W. 306, 36 Am.Rep. 437; State v. Doepke, 68 Mo. 218, 30 Am.Rep. 785; State v. Brown, 55 Kan. 611, 40 P. 1001.

In reference to the instructions, section 225 of the Criminal Code provides that "the court shall, on the motion of either party and before any argument to the jury, instruct the jury on the law applicable to the case, which shall always be given in writing." We have held that this Code provision is mandatory, and that the trial judge must instruct the jury in writing, even in misdemeanor cases unless the accused...