People of the Territory v. McGrath , 5 Utah 525 ( 1888 )

Zane, C. J.:

The defendant was accused by indictment in the first district court of the crime of grand larceny, and convicted. The indictment charged that the crime was committed by taking from Alma H. Winn, during the trial of the case of Bullion, Beck and Champion Mining Company v. Eureka Hill Mining Company, 11 of his books, containing a phonographic report of the testimony of witnesses examined on the trial. It appears from the evidence in the record that the loss of the notes necessitated the retaking of the testimony, there being no duplicate report. The evidence showed that Winn was the official reporter of the court, and that the books were taken from his possession without his knowledge or consent. They were alleged in the indictment to be worth $500. The evidence showed that the reporter received $10 per day for reporting, and that he was engaged 11 days in making the report. Winn testified that in view of the cost of making the report, and of the value thereof for transcription, and of the importance of the case, the boobs taken were of the value of $1,000. The appellant insists that the phonographic report of the testimony was not the subjectof larceny, and we are referred to 2 Puss. Crimes, 262. Having stated that written instruments relating to real estate, and choses in action, were not the subject of larceny at common law, the author gives the reason for the rule: “And the reason why title deeds and choses in action are not the subject of larceny is because the parchment is evidence of the title to land, and the written paper is the evidence of the right, and, though the evidence is stolen, the right remains the same; and a right cannot be subject to larceny; neither can the paper which is evidence of it.” This reasoning is quite refined, if not subtle. We do not concede that choses in action and title deeds are not the subject of larceny at the common law as it is now understood and applied in this country. But if we were to concede that they were not, the books in question are neither title deeds nor choses in action. They are not within the letter or the reason of the rule. Those books contained the expression in phonographic characters of the knowledge of the witnesses with respect to the subject of the action in which the notes were taken for use therein. Larceny is described in the Criminal Code of this territory as follows: “Larceny is the felonious stealing, taking, carrying, leading, or driving away the personal property of another.” Personal property may be said generally to include everything that is the subject of ownership, not being land, or an interest inland. We are of opinion that the books in question are personal property.

It is urged that the court erred in adopting a wrong-standard of value on the trial, and that the true standard was the market value of the paper contained in the books. The testimony reported in these books gave to them their value, and for this there was no market. The market value is the right standard of value of property for which there is competition. But this phonographic report was only valuable for the use that could be made of it in the case in which it was taken. The use that may be made of property gives to it its value. If it can be used by many, it will have a market value; if but by one, it will be valuable to him alone. And the value to him is the one that must be taken in estimating its worth. In such a case it is sufficient to prove the market value to that person. 3 Greenl. Ev. sec. 153. Com. v. Riggs, 14 Gray, 376; Com. v. Lawless, 103 Mass., 425.

The appellant insists that the judgment of the lower court should be reversed because one of the counsel for the people, in the statement of the case to the jury, said: “The testimony of Pyne and Giblin as to the fact of the conversation having occurred between Giblin and the defendant, with reference to the loss of these notes, on that Saturday, stands here unexplained; and it was in the power of the defendant, if no such thing occurred, to explain it, and his failure to do it seems to me to make' that testimony conclusive as to the fact of the conversation occurring on that evening in the drug store.” The counsel said, in effect, that the presumption was that the conversation occurred in the drug-store, as stated by the two witnesses, in the absence of evidence to the contrary. He did say that the statement was unexplained, and that it was in the power of the defendant to explain it; but how, counsel did not intimate. He did not refer to the fact that the defendant was a competent witness, and had not testified; and he claimed no inference against him because he had not. He did claim that the presumption was that the witnesses named told the truth. In the absence of explanation, reasonable statements of unimpeached witnesses are presumed- to be true when uncontradicted. In a larceny case, when the evidence shows that the property stolen was found in the possession of the defendant soon after the theft, it would not be error to say to the jury that such possession, without any reasonable explanation, would be evidence of guilt. But we do not wish to be understood as intimating that it would not be error for the prosecution to state to the jury that a defendant who had not testified, had the right to do so, or to suggest any inference against him because he had not.

There was no error in the ruling of the court permitting the witness Turner to testify in regard to a conversation with the defendant. The statements made by the defendant appear to have been voluntary.

We find no error in this record. The judgment of the court below is affirmed.

Boreman, J., and Henderson, J., concurred.