Brooks v. State
Decision Date | 31 December 1889 |
Parties | BROOKS ET AL. v. STATE. |
Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. In a prosecution for the larceny of goods, witnesses called to testify as to the value of the property stolen must show that they possess knowledge of the value of such property. Engster v. State, 11 Neb. 539, 10 N. W. Rep. 453.
2. Where the testimony showed that property stolen consisted almost wholly of ready-made clothing, which had been worn on Sundays by the owner for about seven months, and that he could not testify to its actual value, an instruction that “as to the wearing apparel, you will find its real value to the owner at the time of its being stolen” is erroneous. REESE, C. J., dissenting.
Error from district court, Lancaster county; FIELD, Judge.Houston & Baird, for plaintiffs in error.
Wm. Leese, Atty. Gen., for the State.
The plaintiffs in error were indicted in Lancaster county for willfully and maliciously, in the day-time, breaking into the sleeping rooms of George Maxwell and Ed. Thompson in a dwelling-house in said county, on the 17th day of November, 1888, with the intent to steal, and that they did, at said time and place, unlawfully, willfully, and feloniously steal, take, and carry away property of the said Maxwell and Thompson of the value of $48. On the trial of the cause the jury returned a verdict of guilty against both of the plaintiffs in error, and found the value of the goods stolen to be $36. They were thereupon sentenced to imprisonment in the penitentiary for two years. The principal errors assigned in this court relate to the sufficiency of the testimony, and to the giving of the seventh paragraph of the instructions. George Maxwell, a witness called by the state, after testifying to the loss of the goods in controversy, testified: Upon this testimony the court instructed the jury as follows:
Now, even if such evidence is admissible in certain cases, as where the clothes have a peculiar value from some specific cause, it cannot apply to mere ready-made clothing, which can be bought at any clothing house, and therefore was not applicable to this cause. The seventh paragraph of the instructions, therefore, was clearly erroneous. Under the rule just announced, a witness smarting under the loss of his property might swear that a handkerchief costing 50 cents was worth $50 to him, or a hat which cost $3 was worth to him $300. Such a rule practically nullifies the statute which makes the stealing of goods of the value of $35 a felony. In Engster v. State, 11 Neb. 539, 10 N. W. Rep. 453, concurred in by Judge COBB, it was held, “on the trial of one E. for receiving stolen goods, the statute making the receiving of such goods of the value of $35 and upwards a felony, that it devolved on the state to prove by competent testimony that the value of such goods was at least...
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