State v. Persons, 232

• Decision Date: 07 October 1952
• Docket Number: No. 232,232
• Citation: 91 A.2d 701,117 Vt. 306
• Parties: STATE v. PERSONS.
• Court: Vermont Supreme Court

Page 701

91 A.2d 701

117 Vt. 306

STATE v. PERSONS.

No. 232.

Supreme Court of Vermont.

Oct. 7, 1952.

Ernest E. Goodrich, St. Johnsbury, for plaintiff.

John H. Downs, State's Atty., St. Johnsbury, for defendant.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and CUSHING, JJ.

JEFFORDS, Justice.

This is a complaint charging petit larceny. The respondent was convicted on jury trial, followed by judgment and sentence. He brings the case here on several exceptions.

By V.S. 47, § 8305, petit larceny is defined as the stealing of money or other property not exceeding $50 in value. The court in its charge to the jury made no mention of the value of the property alleged to have been stolen and charged, in substance, that if they found beyond a reasonable doubt that the respondent took the article in question with felonious intent they must find him guilty. Counsel for the respondent called the court's attention to its failure to define petit larceny. The court then stated to the jury, in substance, that petit larceny was the stealing of property of the value of less than $50 and that there had been some testimony in the case as to the value of the article in question. The court then stated that 'the question of value comes to the jurisdiction of this court and is not one for your consideration.' An exception was taken to this statement on the ground, in substance, that in order for the respondent to be found guilty it must be proven that he took goods of less than $50 in value and that this matter of value was one of the principal questions for the determination of the jury. An exception was allowed to the charge as given.

The testimony relating to value came from one witness and was as follows:

'Q. And what, in your opinion, is the value of State's Exhibit No. 1? A. We get half price. That is the way we sell. We have to have a line. That's half price of new. A radiator like that sells for eighty dollars, between seventy-eight and eighty dollars. That would make the radiator itself worth forty. The shell and grill sells for thirty-five dollars new. Cut that in two, would make it about seventeen dollars and a half. The radiator support sells for twelve dollars. Cut that in half would make it six. That's how we arrive at our price.

'Q. And what would be the price of State's Exhibit No. 1? I didn't add that. Do you have a rough idea? A. Well, about fifty-eight dollars.

'Q. Is that wholesale or retail? That would be what? A. That would be retail.

'Q. And do you sell wholesale? A. We don't sell what you call wholesale. Not on used parts.

'Q. To put it another way, would you under some circumstances sell it for twenty-five percent less? A. Yes, to a garage man.

'Q. So that you might, in fact, get less than fifty dollars? A. To a garage man only.'

The value of the property alleged to have been stolen was a material fact in the case. If this value was under $50 and the other necessary elements were proven then the respondent was guilty of the offense charged. If the value was over that amount he was not guilty as charged. The determination of this question was for the jury and it was error for the court to hold as a matter of law that the value was less than $50.

'Where the grade or degree of offense depends on the value of the property stolen, the determination of the value is a question of fact for the jury under proper instructions.' 52 C.J.S., Larceny, § 139, p. 987. See also 23 C.J.S., Criminal Law, §§ 1159, 1317, pp. 697 and 915 and Am.Jur. at...