Locke v. State , 32 N.H. 106 ( 1855 )

Eastman, J.

It is contended by the plaintiff in error that the jury, having failed to find the value of the property, no judgment could be rendered upon their verdict; or, if any, that it should have been upon the supposition that the property was of nominal value only.

By § 13, chap. 215, of the Rev. Stat., it is provided that if any person shall steal, take and carry away, of the property of another, any money, bank bills, goods or chattels, &c., of the value of twenty dollars, he shall be punished by confinement to hard labor for a term not less than two years, nor more than five.

The 14th section provides, that if any person shall steal, take and carry away any property of another, &c., of a less value than twenty dollars, he shall be punished by imprisonment in the common jail not exceeding one year, and by fine not exceeding one hundred dollars, and shall be further sentenced to pay the owner treble the value of the property so stolen, deducting from such treble value the value of any part of said property that may be returned.

And the 17th section of the same chapter provides, that if any person shall be convicted of stealing, &c., excepting in cases where the treble value of the property is awarded, the owner of such property, upon such conviction, shall have judgment and execution in common form against such convict for the value thereof, deducting the value of such part as may be returned.

From an examination of these sections it is apparent that upon a general verdict of guilty the court cannot impose a full sentence and render such a judgment as is prescribed by the statute, unless the verdict is to be treated as finding the value of the property at the sum alleged in the indictment. If the value is above twenty dollars, the owner may have his judgment for the same under the 17th section; and if under twenty dollars, he is entitled to treble its value. If, then, the value is not found, the sentence and judgment of the law cannot be carried out. The gist of the offence is the theft, but the value of the property is essential to be known in passing the sentence, and in giving full effect to the statute.

Is, then, a general verdict of guilty, such as was rendered in this case, sufficient ? Are the court, from such a verdict, to presume that the jury have found the value of the property to be that stated in the indictment, and to pass their sentence accordingly ? If so they will make a presumption, which, in most cases, is contrary to the fact, for it is well known that although the indictment must allege some value to the property, (Wharton’s Or. Law 184,) yet exact accuracy in this respect is never sought by the prosecuting officers, and the actual value is seldom, if ever, precisely stated.

In the present case, as appears by the exceptions filed and allowed, there was a controversy as to the ownership of the pin, and the court instructed the jury that that question was not material, for the reason that it was shown that the watch was of more than twenty dollars value, and that, if they found such to be the fact, they could return a general verdict of guilty. It is to be observed, also, that the evidence tended to show the watch to be of a less value than one hundred dollars.

To say, then, that the jury by this general verdict have found the property to be of the value of one hundred and ten dollars, would be to make a presumption which is no doubt contrary to the fact; and unless that can be done, how are the court to say what the value of the property was ? And how could they pass a sentence and order a judgment that should conform to the law, unless the value was found ?

We think that in cases of simple larceny, like the present, where the value is material, the jury should be instructed not only to find a general verdict of guilty or not guilty, but should also be instructed to find the value of the property stolen: That it is only by such a finding that the court can know the value of the property, so as to pass a legal sentence and make up a legal judgment, and that this judgment, having therefore been rendered upon an insufficient verdict, must be reversed.