tain value. The presumption in such case is that the bills are genuine and of the value they purport, and the onus of showing the contrary is on the prisoner.' Parol evidence of the contents of the bills stolen is admissible, without accounting for their non-production.❜

§ 140. Necessity of proving value.-Without proof of value of stolen property, there can be no conviction for larceny ;* and unless the record shows that there was such proof, the court will set aside a conviction, although the error was not pointed out by counsel; and this, notwithstanding the property stolen was currency such as the United States silver certificates." It is always necessary to prove the value of the property alleged to have been stolen, in order to determine the grade of the offense and the penalty to be imposed; and in the absence of any evidence upon the subject of such value, the court must presume it to be nominal merely.' But where the punishment of the offense charged does not depend on the value of the articles taken, proof of value is unnecessary, and the jury may ascertain whether or not the articles are of any value by inspecting them. Thus on the trial of an indictment charging the stealing of "one beef, then and there being cattle," of the value of $10, the value need not be proved, cattle stealing being grand larceny irrespective of value.' Where a theft is prosecuted in the county to which the stolen property has been taken, although the value of the property stolen is sufficient to make the offense a felony, yet, if the value of that taken to the county in which the prosecution is had is of less amount the defendant can be convicted for a

8

1 People v. Fallon, 6 Parker, 256; affi'd 2 N. Y. App Dec. 83.

2 People v. Holbrook, 18 Johns. 90.

* Ware v. State, 33 Ark. 567; Whitehead v. State, 20 Fla. 841; Radford v. State, 35 Tex. 15; Hall v. State, 15 Tex. App. 40; Moore v. State, 17 Tex. App. 176.

* Whitehead v. State, 20 Fla. 841; Powell v. State, (Ga.) 13 S. E. Rep.

829; Stokes v. State, 58 Miss. 677.

People v. Griffin, 38 How. Pr. 475.

• Com. v. Burke, 12 Allen, 182. Davis v. State, 40 Tex. 134.

misdemeanor only.' In Massachusetts, however, proof of the alleged value is unnecessary. It is sufficient for conviction that the property alleged to be stolen is shown to be of some value. Things of no value are not subjects of larceny." So also, in Virginia, where an indictment' charged the value of the lock stolen to be thirty cents, and there was no distinct proof of any specific value, but the evidence showed that it had a key in it, and was used in fastening a door, this was held sufficient to show that it was of some value.'

4

§ 141. When value will be inferred.-In Maine, on trial for larceny or concealment of stolen goods it must affirmatively appear that the goods stolen or concealed were of some value; but the proof may be inferential, and may be inferred from an inspection of the goods, or from a description of them. The value of American gold and silver coin, and of "national currency notes" being fixed by law, no proof of their value is necessary to sustain a conviction for their larceny. Thus on the trial of an indictment for the larceny of sundry United States treasury notes, or national bank bills, of the aggregate value of $40, evidence that the property stolen consisted of two twenty-dollar bills, known as greenbacks, authorizes the jury to find the value of the notes or bills without any independent proof thereof. But in Texas, where an indictment charged the theft of United States silver certificates of a specified value, it was held that proof must be

1 Roth v. State, 10 Tex. App. 27.

2 Com. v. Riggs, 14 Gray 376; 77 Am. Dec. 333.

& Wolverton v. Com. 75 Va. 909.

4 State v Gerrish, 78 Me. 20. On a trial for stealing a horse, the fact that the horse was of some value is sufficiently established by proof of facts from which the jury may infer it; as where the prisoner said he borrowed the horse, and again that he stole it, it might be inferred that the animal was of some value, as no one would borrow or steal a worthless horse; so evidence that a witness went one hundred miles to hunt the horse after he was stolen, would tend to prove that he was of some value, as one would hardly go so far for a worthless horse; so proof that the horse possessed the power of locomotion, and traveled a hundred miles and back again, would go to establish the fact that he was of some value.-Houston v. State 18 Ark. 66.

5 Grant v. State, 55 Ala. 201. 6 Duvall v. State, 63 Ala. 12.

made that the certificates were issued by authority from the United States, and of their value as alleged.'

§ 142. How value may be proved. On the question of the value of stolen property, any evidence is competent from which value may be inferred.' Witnesses called to testify as to value must show that they possess knowledge of the value of such property. But a man of ordinary intelligence may testify to the value of a sealskin overcoat, although he has never bought or sold one. And one who complains of the theft of a sealskin cloak which she has worn for one winter, and who testifies that she has priced such articles, is competent to testify to its value." The stolen goods may be exhibited to the owner before he is required to testify in relation to them; and when examined as a witness he may refresh his recollection as to the value of the articles from a schedule made by his clerk in his presence and under his direction and inspection. For the purpose of fixing the grade of the crime, the market value is that to be taken. Evidence of what the owner of the stolen property deems its value is admissible, however.' But in proving the value of stolen personal clothing the testimony should not be confined to current prices among dealers in second-hand clothing. Proof that one accused of stealing U. S. treasury notes has declared that he has spent them, is sufficient proof of value, if any were required.' Where, on the trial of one jointly indicted with others for theft, it appears that the value of the property taken by all was sufficient to make the theft a felony, the State need not show how much in value was taken by either one of the individuals jointly indicted."

1

1 Simpson v. State, 10 Tex. App 681.

'Saddler v. State, 20 Tex. App. 195. 'Brooks v. State, 28 Neb. 389.

4 State v. Finch, 70 Iowa 316.

'Printz v. People, 42 Mich. 144; 36 Am. Rep. 437.

* State v. Lull, 37 Me. 246.

'Martinez v. State, 16 Tex. App. 122.

8 Pratt v. State, 35 Ohio St. 514.

• Vincent v. State, 3 Heisk. 120.

10 Clay V.

State, 40 Tex. 67. On a trial for larceny of a soldier's "dis.

§ 143. How far proof must correspond with allegation of value.*-On the trial of an indictment for larceny, it is not necessary to prove that the amount of the property stolen is not more than the amount alleged.' But on the other hand, evidence that the property appropriated was of the value of $15 will not support a verdict finding the defendant guilty of swindling to an amount exceeding $25, and therefore of felony. Where articles of different kinds are alleged to have been stolen, and only the collective value of the whole is averred, there can be no conviction upon proof of stealing either description of property alone. This rule is also applicable to indictments for robbery.' And a conviction of felonious theft cannot be sustained by evidence of stealing, at different times, lumber, worth, in the aggregate, more than $20, if not appearing that the quantity stolen at any one time was worth more than this amount. So, on a trial for theft of jewelry, when several articles of jewelry, of the value of more than $20, are traced to defendant's possession, but two of them only are identified as the property of the person named in the indictment, and their value is shown to be $16, and there is no evidence of the value of the other articles, there can be no conviction for felony; theft of property of the value of $20 being a felony."

charge" of the value of $100, evidence was considered to warrant a finding that what the defendant stole was of some value, although the paper was not produced.-Com. v. Lawless, 103 Mass. 425. Evidence that the owner of a stolen cow, but a short time before she was stolen, paid $50 for her, and that defendant instructed his employe, who was assisting him in selling the stolen cow, to ask $30 or $40 for her, was held sufficient to go to the jury on the point that she was worth more than $25 when stolen.-People v. Harris, 77 Mich. 568. What evidence is sufficient to prove the value of stolen paper money, see Bagley v. State, 3 Tex. App. 163.

*See, also, infra § 243.

1 Com. v. Gallagher, 126 Mass. 54.

2 Mathews v. State, 10 Tex. App. 279.

3 Com. v. Cahill, 12 Allen 540.

4 Lacey v. State. 22 Tex. App. 627.

20 Tex. App. 486.

CHAPTER XX.

PROOF OF OWNERSHIP.

§ 144. Necessity of proving ownership.

145. How proven, generally.

146. Showing constructive possession by the owner.

147. Showing alleged owner's special property.

148. Joint and separate ownership.

149. Property held in trust.

150. Property of married woman.

151. Corporate property.

152. Proving ownership by marks and brands.

§ 144. Necessity of proving ownership.-To warrant a conviction for larceny, the proof must be clear and certain that the thing stolen was the property of some person other than the defendant at the time it was taken by him.' The evidence must show that the thing alleged to have been stolen was the property of the person alleged,' or the conviction of the defendant cannot be sustained.' Thus, an indictment for stealing the horse of A. cannot be sustained by proof of stealing the horse of B., unless the horse is otherwise so described as to identify it, independently of ownership. But one charged with stealing three hogs belonging to A. may be convicted if only one of the hogs is proved to have belonged to A.'

§ 145. How proven, generally. It is not necessary that the person whose goods are charged to have been stolen should swear that they belonged to him. That fact may be proved by other evidence. Thus, a written receipt for the purchase money of stolen goods, in the possession of the alleged owner,

1 Burton v. State, 21 Tex. App. 554.

Bell v State, 46 Ind. 453; Anderson v. State, 14 Tex. App. 49.

8 King v. State, 44 Ind. 285; Fletcher v. State, 16 Tex. App. 635; Thompson v. State, 23 Tex. App. 356.

McBride v. Com. 13 Bush 337. 'State v. Evans, 23 S. C. 209. • Lawrence v. State, 4 Yerg. 145.