Brooks v. State

Decision Date31 December 1889
PartiesBROOKS ET AL. v. STATE.
CourtNebraska 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.

MAXWELL, J.

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: “Question. What is the suit of clothes worth? Answer. I value them at that time--. Houston. I object, as no foundation is laid to show this man is competent to testify to value. Q. Were these tailor-made clothes? A. No, sir. Q. Were the coat and vest? A. No; ‘hand-me-downs.’ Q. How long had you worn them? A. I had worn them seven months. Q. What did they cost? A. They cost me $25. Q. How much were they damaged by wearing? A. I had worn them for a Sunday suit. Q. You may state what this suit of clothes were worth at the time they were taken from the room. Houston. I object till it is shown that the witness is competent to testify. A. I stated on my word and honor that they were worth $20 to me. Q. Did you lose anything else? A. I lost a revolver. The Court. Where is that suit of clothes? Stearns. They only found a pair of pants. The Court. Are they there? Stearns. Yes, sir. Q. How long had you had this revolver? A. Three years. Q. Would you recognize it if you saw it again? A. Yes, sir. Q. Is that it? A. No, sir. Q. Did you find it again? A. I did not see it again. Q. What kind of a revolver was that? A. It was an American bull dog. Q. How much had it been used? A. I don't know prior to my buying it whether it had been used or not. I said three years I had it. Q. Had you used it much? A. No, sir. I had carried it that length of time when I had been traveling. Q. What was the fair market value of that revolver when taken? A. Five dollars. (Houston objected as not shown competent to testify as to the value.) Q. You bought and sold revolvers, and saw what they sold for in the market? A. I bought them, and never sold any. Q. By buying them, do you know what they were worth? A. Yes. Q. What was this revolver worth in the market? Houston. I object, because he has not shown himself competent to testify as to the value of these goods. Q. State what the fair market value of this revolver was. A. Well, I stated it was worth $5.” Upon this testimony the court instructed the jury as follows: “If you find the defendants, or either of them, guilty of larceny, then, in arriving at the value of the goods stolen, you are instructed that you must determine this question from evidence before you the same as any other fact necessary to the determination of the guilt or innocence of the defendants. Nothing must be assumed or taken for granted against the defendants, and in fixing the value of goods you must be satisfied beyond a reasonable doubt from the evidence that the value of the goods stolen is the amount fixed by you in your verdict. In fixing the value of goods, you are not to be entirely governed by the price they would bring if sold as second-hand goods, but as to wearing apparel you will find its real value to the owner at the time of its being stolen, taking into account its cost, the amount of wear it has been shown to have had, its condition as proved to have been at the time of taking. As to the other property, you will fix its value at such amount as you find from the evidence such property, has been proven to have been worth at the time and place of taking.”

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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3 cases
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    • United States
    • Nebraska Supreme Court
    • 31 Diciembre 1889
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    • United States
    • Nebraska Supreme Court
    • 31 Diciembre 1889
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