State v. Boswell

• Decision Date: 16 April 1929
• Docket Number: 6390.
• Citation: State v. Boswell, 107 W.Va. 213, 148 S.E. 1 (W. Va. 1929)
• Parties: STATE v. BOSWELL.
• Court: West Virginia Supreme Court

148 S.E. 1

107 W.Va. 213

STATE v. BOSWELL.

No. 6390.

Supreme Court of Appeals of West Virginia.

April 16, 1929

Submitted April 9, 1929.

Syllabus by the Court.

Upon a charge of grand larceny, the market value of the thing stolen (if it have a market value) as at the time and place of the theft must be proven beyond reasonable doubt.

Testimony of a bona fide offer to purchase the thing stolen, made within a few months of the larceny by one affirmatively shown to possess a fair knowledge of the market value thereof, may be admitted, provided it be shown that the value of the thing stolen did not decline between the time of the offer and the theft.

Proof of the interest of a witness, or that he has made statements inconsistent with his testimony on the trial, is admissible.

Error to Circuit Court, Monongalia County.

Thomas Boswell was convicted for stealing a cow, and he brings error.Reversed, and a new trial awarded.

Posten Glasscock & Posten, of Morgantown, for plaintiff in error.

Howard B. Lee, Atty. Gen., and W. Elliott Nefflen, Asst. Atty. Gen for the State.

HATCHER J.

The defendant, Boswell, was found guilty of stealing a cow of the value of $100, and sentenced to two years in the penitentiary.

The evidence shows that Boswell was with two men, named Brown and Griffith, on a night in February, 1928, when a cow was stolen from P. E. Yeager; that he was with them when they stopped with the cow at the house of Boyd Worthington and tried to persuade him to let them butcher her in his stable; that upon his refusal, Boswell accompanied them to Griffith's own kitchen, where they killed and butchered the hapless bovine but that he was not with them when they sold the meat and did not share in their ill-gotten gains.

Worthington states that "of course Boswell did not have very much to say" during the conference at his house, the other two doing most of the talking.Mrs. Worthington who overheard the conversation with her husband, did not hear Boswell say anything.Griffith testifies that Boswell participated in the stealing, killing, and butchering, but not in the selling.Brown did not testify.

Boswell protests that while he remembers being with the two on the day of the larceny, he did not know their business; that he had been drinking, and if he was with them at Worthington's that night he was "out of his head" and knew nothing of it; and that he did not help steal, kill, or butcher the cow.

The defendant contends that the evidence does not show beyond a reasonable doubt that he participated in the theft.This contention is not well taken, however, as the testimony of Griffith alone is sufficient to sustain the verdict on that point.

The further contention is made that the value of the cow was not proven.The only evidence on this subject is that of the owner, who, when asked as to her value, replied: "I didn't put no price on her, but a man last fall offered me a hundred dollars for her and I refused it."In order to sustain the charge herein, the evidence must show beyond a reasonable doubt that the cow was of the value of $20 or more at the dateshe was stolen.Francis v State,87 Miss. 493, 39 So. 897;State v. Wood,46 Iowa 116.Her market value then is the true criterion.Wharton's Crim. Ev. (10th Ed.) § 258;Underhill's Crim. Ev.(3d Ed.) § 467;Wigmore on Ev. (2d Ed.) § 717;17 R.C.L. § 71, p. 66."Evidence of value based on any other standard is inadmissible."36 C.J.pp. 883, 884, § 449.It is common knowledge that the value of live stock may rapidly decline in a few months. ...