State v. Hathaway

Decision Date10 December 1896
PartiesSTATE v. HATHAWAY ET AL.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from district court, Polk county; C. P. Holmes, Judge.

The defendants, Robert Sylvanous Hathaway and William Jacob Palmer, were convicted of the crime of larceny, and from the judgment, which required them to be imprisoned in the penitentiary at Fort Madison for a term of years, they appeal. Affirmed.T. D. Hastie, for appellants.

Milton Remley, Atty. Gen., James A. Howe, Co. Atty., and Jesse A. Miller, for the State.

ROBINSON, J.

The indictment charges the defendants with larceny of property of B. T. Kent of the value of $50. The defendants pleaded not guilty to the charge, but the jury found them guilty, and fixed the value of the property stolen at $25. That the defendants were guilty of stealing the property in question is not denied in this court, but it is insisted that its value is less than $20, and that they were convicted of a higher degree of the offense charged than that of which they were guilty.

1. Mrs. Alice Kent, the wife of B. T. Kent, testified that the property stolen included a trunk and its contents, which consisted of numerous articles of wearing apparel, and that its reasonable market value was about $50. The defendants moved to strike out her testimony, on the ground that she was not shown to be competent to testify to the value in question, but the motion was overruled. We are of the opinion that the ruling was correct. The clothing belonged to herself and husband, had been used by them and their children, and she was entirely familiar with it. She testified that she knew its value, and, although, she may not have known what it would sell for in secondhand clothing stores, nor at public auction, the facts shown in regard to her knowledge justified the presumption that she knew its fair market value, and made her testimony competent. Tubbs v. Garrison, 68 Iowa, 48, 25 N. W. 921. She showed a greater knowledge of the actual value of the property than did two dealers in secondhand clothing who testified for the defendants, and her testimony was more satisfactory than theirs. The evidence justified the jury in fixing the value of the property stolen at $25.

2. The only instruction given by the court in regard to the method of fixing the value of the property was as follows: (5) If you shall find the defendants guilty of the larceny of the goods described in the indictment, or some part thereof, it will become your duty to determine the market value of the property which you shall find they thus stole. By the words ‘market value,’ as here used, is meant the price or prices at which the property could ordinarily be bought and sold, by or between persons who would ordinarily buy and sell such goods for cash, or trade at an equivalent for cash. In determining such value, you are not necessarily confined to the price at which dealers in secondhand clothing would buy or sell the property, but you should ascertain and return the sum which you shall find, upon a consideration of all the facts shown in the evidence and the evidence of all the witnesses, to be the reasonable market value thereof, as above defined.” The appellants suggest that this instruction is erroneous in not confining the jury to a consideration of the testimony as to value given by the dealers in secondhand clothing. We have already stated that the testimony of Mrs. Kent as to the value was competent, and the instruction is not erroneous in the particular in which it is questioned. We do not understand the appellants to claim that it was erroneous in any other respect, but they contend that the court erred in not charging the jury that, if it had a reasonable doubt as to whether the value of the property stolen was more than $20, they should find it to be $20 or less. That it was the right of the defendants to have had such an instruction given is well settled. State v. Wood, 46 Iowa, 117; State v. McCarty, 73 Iowa, 51, 34 N. W. 606;State v. Neis, 68 Iowa, 469, 27 N. W. 460;State v. Jay, 57 Iowa, 164, 10 N. W. 343; State v. Walters, 45 Iowa, 390. No instruction in regard to value was asked by the defendants, and it is claimed on the part of the state that no exception was taken to the charge given, and, therefore, that the defendants cannot rely upon the error of the court to secure a reversal. It is the general rule, applicable in criminal as well as in civil cases, that the judgment of the trial court will not be reversed for an error in giving or failing to give instructions to the jury, where objection to the error is not made and exception taken at the time it is committed. State v. Callahan (Iowa) 65 N. W. 150; State v. Moran, 7 Iowa, 238; State v. Hussey, Id. 411; State v. Reasby (decided at the present term of this court) 69 N. W. 451. It is true that section 4538 of the Code requires this court to determine appeals in criminal cases without regard to technical errors or defects which do not affect the...

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