State v. Lawrence

• Decision Date: 19 July 1951
• Docket Number: No. 7574,7574
• Citation: 120 Utah 323,234 P.2d 600
• Parties: STATE, v. LAWRENCE.
• Court: Utah Supreme Court

Page 600

234 P.2d 600

120 Utah 323

STATE, v. LAWRENCE.

No. 7574.

Supreme Court of Utah.

July 19, 1951.

David H. Oliver, Salt Lake City, for appellant.

Clinton D. Vernon, Atty. Gen., Allen B. Sorensen, Asst. Atty. Gen., for respondent.

CROCKETT, Justice.

This case comes to us on an appeal from a conviction of grand larceny, arising out of the theft of an automobile. Two questions are presented: First, where there is no evidence of value except a description of the property involved, is it prejudicial error for the court to instruct the jury that the value of the property is greater than $50 and that if defendant is guilty at all he is guilty of grand larceny. The necessity of answering the first question in the affirmative gives rise to the second: Where such error has been committed, can the cause be remanded for retrial without violating the constitutional guarantee of the accused not to be placed twice in jeopardy for the same offense. After a consideration of the problems involved touching upon those questions we answer both in the affirmative.

At the conclusion of the evidence, the defendant's counsel moved the court for a directed verdict on the ground that there had been no evidence of value of the stolen car. The State's attorney might properly and with little difficulty have moved to reopen and supply the missing evidence. He did not do so but instead argued that judicial notice could be taken of the value of the car. The court denied defendant's motion and included in its instructions to the jury the following:

'Grand Larceny so far as it might be material in this case is committed when the property taken is of a value exceeding $50.00.

'In this case you will take the value of this property as being in excess of $50.00 and therefore the defendant, if he is guilty at all, is guilty of grand larceny.'

It is conceded by the State that there was no direct evidence of value and that the only testimony in the record upon which a finding of value could be based was that of the owner of the automobile describing it saying it was in excellent condition.

This is not a case where the defendant either expressly or impliedly admitted the value, nor by conduct or statements of himself or counsel, allowed it to be assumed that the matter was not disputed. His plea of not guilty cast upon the State the burden of proving every essential element of the offense by evidence sufficient to convince the jury beyond a reasonable doubt. In a charge of grand larceny, one of those essentials is that the value be greater than $50. A conviction for that offense cannot stand unless there is satisfactory evidence of the value of the property. State v. Harris, Mo., 267 S.W. 802; People v. Leach, 106 Cal.App. 442, 290 P. 131. Ordinarily, judicial notice will not be taken of the value of personal property, 31 C.J.S., Evidence, § 101, page 701, and as will later appear herein, this is unquestionably so in connection with the instruction given in this case.

We direct our attention to the argument of the prosecution that the court could take judicial notice of the value of the car and so instruct the jury: Judicial notice is the taking cognizance by the court of certain facts without the necessity of proof, 31 C.J.S., Evidence, § 6, page 509. One class of factual material which is the subject of judicial notice is that dealt with by statute. Section 104-46-1, U.C.A.1943, provides: 'Courts take judicial notice of the following facts:' and proceeds to list in eight separate categories, such things as English words, whatever is established by law, acts of departments of government, seals of courts, states and the United States, etc. It would be of no value to list them all here because the value of the car in question could not be thought to come under any subdivision of that statute by any stretch of the imagination.

Section 104-54-4, U.C.A.1943, under the Code of Civil Procedure provides in part: '* * * Whenever the knowledge of the court is by law made evidence of a fact, the court is to declare such knowledge to the jury, who are bound to accept it.'

The word 'knowledge' in the foregoing section is apparently used advisedly, there being a distinction between 'judicial knowledge' of public records, laws, etc. which the court is deemed to know by virtue of his office and 'judicial notice' of things which are commonly known. 31 C.J.S., Evidence, § 6, page 509, 20 Am.Jur. 47. The further discussion in this opinion will show that this statute has no application to the instant case. We are not here concerned with what the result might be if the evidence in question were such that the statute required that the jury be bound to accept it.

Beyond the scope of the statute providing that certain matters will be taken judicial notice of, there is another class of facts which are so well known and accepted that they are judicially noticed without taking the time, trouble and expense necessary to prove them. Under this doctrine the court will consider, without proof of such generally known facts, its knowledge of what is known to all persons of ordinary intelligence. 31 C.J.S., Evidence, § 7, page 510. This court has recognized that class of judicial notice in a great variety of matters, a few examples of which are: Rugg v. Tolman, 39 Utah 295, 117 P. 54, (that assignment or garnishment of wages ordinarily imputes no wrong or misconduct to the debtor); Union Savings & Inv. Co. v. District Court of Salt Lake County, 44 Utah 397, 140 P. 221, (the general purpose and methods of doing business of building and loan associations); Salt Lake City v. Board of Education of Salt Lake City, 52 Utah 540, 175 P. 654 (location of school buildings); Utah State Fair Ass'n v. Green, 68 Utah 251, 249 P. 1016 (that betting follows horse racing); State Tax Commission v. City of Logan, 88 Utah 406, 54 P.2d 1197 (that most consumers of electrical energy are constant users). For numerous cases on judicial notice of many different subjects of common knowledge outside the classes covered by our statute see Pacific Digest, Evidence, k1 to 52, Inc. The taking of judicial notice of this latter class of commonly known evidentiary facts does not establish them so conclusively as to prevent the presentation of contrary evidence or the making of a finding to the contrary. The subject is treated in Wigmore on Evidence, 3d Ed., Sections 2555 et sequi, and he states in Section 2567: '(a) That a matter is judicially noticed means merely that it is taken as true without the offering proof by the party who should ordinarily have done so. This is because the court assumes that the matter is so notorious that it will not be disputed. But the opponent is not prevented from disputing the matter by evidence, if he believes it disputable.'

In discussing this further, Wigmore refers to statutes which expressly provide that the judicial notice is the final determination and binding on the jury; and in Subsection b of the above section, continues: '* * * Does it signify that the settlement of the matter rests with the judge and not with the jury, that the jury are to accept the fact from the judge, and that so far as any further investigation is concerned, it is for the judge alone? Such is the view sometimes found, in decisions as well as statutes [citing statutes including Utah]. Yet it seems rather that the jury are not concluded; that the process of notice is intended chiefly for expedition of proof; and remains possible for the jury to negative it.' (Emphasis added.)

See also 31 C.J.S., Evidence, § 13, page 520, note 62.

Accordingly, if we assume that the value of the car is of that class of facts which is so well known that judicial notice should be taken thereof, that would not necessarily be conclusive upon the jury. It would merely take the place of evidence. Upon that basis the court could have instructed the jury to this effect: If you believe from the evidence beyond a reasonable doubt that the defendant stole the automobile in question and that it was a 1947 Ford Sedan in good condition, then you may take into consideration your knowledge acquired in the every day affairs of life in determining what value you will place upon said automobile.

Suppose any number of thoroughly competent and credible witnesses had testified that the car was worth more than $50, and there had been no evidence to the contrary, no matter how clear and convincing the evidence might have been, in a criminal case it was not the prerogative of the court to tell the jury that they have to believe it and so find. See State v. Estrada, Utah, 1951, 227 P.2d 247, 248, wherein this court reiterated the time-honored rule that it is the sole and exclusive province of the jury to determine the facts in criminal cases, whether the evidence offered by the State is strong or weak; and expressly stated:

'If the trial judge may not find a verdict of guilty, so, likewise he may not find any of the facts which are necessary elements of the crime for which the accused is being tried. * * * The provision of our State Constitution which grants accused persons the right to a trial by jury extends to each and all of the facts which must be found to be present to constitute the crime charged, and such right may not be invaded by the presiding judge indicating to the jury that any of such facts are established by the evidence.'

(Emphasis added.)

See that case and the case of State v. Green, 78 Utah 580, 6 P.2d 177, cited therein for the further elaboration on this principle.

It is to be admitted that upon the surface there doesn't appear to be much logic to the thought that a jury would not be bound to find that the car involved here (1947 Ford 2-Door Sedan) is worth more than $50. However, under our jury system, it is traditional that in criminal cases juries can, and sometimes do, make findings which are not based on logic, nor even common sense. No matter how positive the evidence of a man's...