Burrows v. State

• Citation: 37 N.E. 271,137 Ind. 474
• Parties: BURROWS v. STATE.
• Decision Date: 24 April 1894
• Court: Indiana Supreme Court

137 Ind. 474

37 N.E. 271

BURROWS

v.STATE.

Supreme Court of Indiana.

April 24, 1894.

Appeal from circuit court, Montgomery county; E. C. Snyder, Judge.

Ward F. H. Burrows was convicted of larceny, and appeals. Reversed.

Winfield S. Moffitt and P. A. & A. G. Smith, for appellant. Hurley & Clodfelter, for the State.

DAILEY, J.

The appellant was indicted in the court below for the alleged larceny of one check on the First National Bank of Salem, New York, for the sum of $50, bearing date of June 19, 1893, executed to the order of Arthur Le Roy Piser, by L. C. Piser, and charged to have been of the value of $50. Plea of not guilty; trial by jury; verdict of guilty; assessment, punishment at imprisonment in the state prison for the period of two years, a fine in the sum of one dollar, and disfranchisement for five years. There was a motion for a new trial, which was overruled. Judgment upon the verdict, and appeal to this court.

Six errors are assigned. The first four are predicated upon the overruling of the motion to quash the indictment, and the several counts thereof; the fifth upon the overruling of the appellant's motion for a new trial; and the sixth upon the overruling of his motion in arrest of judgment. Under the fifth specification of error it is contended by counsel for the appellant that the fifth instruction given by the court to the jury of its own motion was clearly erroneous. It is as follows: “A check drawn on a bank, when the drawer has money on deposit, as much or more than sufficient to pay the check, is presumptively of some value in the hands of the person in whose favor it is drawn.” It has long been an established rule of the courts that, without proof of the value of stolen property, there can be no conviction for larceny. It is essential to prove the value of the property alleged to have been stolen, in order to determine the grade of the offense, and the penalty to be imposed. In the absence of any evidence upon the subject of such value, the court or jury could not indulge in presumptions to supply the omission. The goods need not be proved to be of the value charged in the indictment, but it must be shown that they are of some value. Bick. Cr. Pr. p. 327; Moores & E. Ind. Cr. Law, p. 238, § 368, note. The market value of the article stolen, and not its original cost, is the true criterion by which to determine the grade of the larceny. Moores & E. Ind. Cr. Law, p. 239, note, citing Taylor's Case; 1 City H. Rec. 28; State v. Doepke, 68 Mo. 208;Cannon v. State, 18 Tex. App. 172;People v. Cole, 54 Mich. 238, 19 N. W. 968. There is an exception to this rule in that the value of gold and silver coin, and national currency generally, being fixed by law, no other proof of their value is necessary. McCarty v. State, 127 Ind. 223, 26 N. E. 665;Collins v. People, 39 Ill. 233; Grant v. State, 55 Ala. 201; Duval v. State, 63 Ala. 12. In all jurisdictions where the value of notes, bills of exchange, drafts, and checks is not prima facie fixed by statute, the question of their value is solely for the jury, and courts should not evade its province. In Iowa and Missouri, where these instruments are by statute made subjects of larceny, their value is prima facie fixed by statute at their face value. State v. Pierson, 59 Iowa, 271, 13 N. W. 291; 1 Rev. St. Mo. § 2539. In this state, section 1878, Burns' Rev. St. 1894 (Rev. St. 1881, § 1809), defines what written instruments may be the subject of larceny, among which are named bills, orders, drafts, checks, etc. But we have no section of the statute fixing prima facie the value of such instruments. By this section such instruments are considered as personal goods, of which larceny may be committed, and their value is left to be determined by the jury, the same as that of any other article of personal property. The enactment of laws in Iowa and Missouri, fixing prima facie the value of these choses in action, is a controlling argument in favor of the necessity of such a law, and equally as potent a reason, in the absence of it, that the value of this class of instruments is a question alone for the consideration of the jury trying the cause. Courts cannot, during the progress of a trial, supply by instruction what they may deem to be necessary legislative enactments. The court bases its presumption of law contained in instruction No. 5 upon the contingency that the drawer of the check has on deposit as much money as will pay it, or more than enough for the purpose. It is a rule...