Cases cited by counsel are referred to in opinion.
Maxwell, J.
The plaintiffs in error were indicted in Lancaster county for willfully and maliciously, in the day time, breaking into the sleeping rooms of George Maxwell and Ed. Thompson in a dwelling house in said county, on the 17th day of November, 1888, with the intent to steal; and that they did at said time and place unlawfully, willfully, and feloniously steal, take, and carry away property of the said Maxwell and Thompson of the value of forty-eight dollars.
On the trial of the cause the jury returned a verdict of guilty against both of the plaintiffs in error, and found the value of the goods stolen to be 836. They were thereupon sentenced to imprisonment in the penitentiary for two years.
The principal errors assigned in this court relate to the sufficiency of the testimony, and to the giving of the seventh paragraph of the instructions.
George Maxwell, a witness called by the state, after testifying to the loss of the goods in controversy, testified;
Q. .What is this suit of clothes worth?
A., I valued them at that time-
(Houston — I object, as no foundation is laid to show this man is competent to testify to value.)
Q. Were these tailor made clothes?
A. No, sir.
Q,. Were the coat and vest?
A. No, hand-me-downs.
Q. How long had you worn them?
[391]*391A. I had worn them seven months.
Q,. What did they cost?
A. They cost me $25.
Q. How much were they damaged by wearing ?
A. I had worn them for a Sunday suit.
Q,. You may state what this suit of clothes were worth at the time they were taken from the room.
(Houston — I object, till it is shown that the witness is competent to testify.)
A. I stated on my word and honor that they were worth $20 to me.
Q,. Did you lose anything else?
A. I lost a revolver.
The Court — Where is that suit of clothes?
Stearns — They only found a pair of pants.
The Court — Are they there?
Stearns — Yes, sir.
Q,. How long had you had this revolver ?
A. Three years.
Q,. Would you recognize it if you saw it again?
A. Yes, sir,
Q. Is that it?
Q,. Did you find it again?
A. I did not see it again.
Q,. What kind of a revolver was that?
A. It was an American bull dog.
Q. How much had it been used?
A. I don’t know, prior to my buying it, whether it had been used or not. I said three years I had it.
Q,. Had you used it much ?
A. No, sir; I had carried it that length of time when I had been traveling.
Q. What was the fair market value of that revolver when taken?
A. Five dollars.
[392]*392(Houston — I object, as not shown competent to testify as to the value.)
Q. You bought and sold revolvers and saw what they sold for in the market?
A. I bought them and never sold any.
Q,. By buying them do you know what they were' worth ?
A. Yes.
Q. What was this revolver worth in the market?
. (Houston — I object, because he has not shown himself competent to testify as to the value of these goods.)
Q. State what the fair market value of this revolver was.
A. Well, I stated it was worth $5.
Upon this testimony the court instructed the jury as follows : “ If you find the defendants, or either of them, guilty of larceny, then in arriving at the value of the goods stolen you are instructed that you must determine this question from evidence before you, the same as any other fact necessary to the determination of the guilt or innocence of the defendants. Nothing must be assumed or taken for granted against the defendants, and in fixing the value of goods you must be satisfied, beyond a reasonable ' doubt, from the evidence that the value of the goods stolen is the amount fixed by you in your verdict. In fixing the value of goods you are not to be entirely governed by the price they would bring if sold as second-hand goods, but as to wearing apparel you will find its real value to the owner at the time of its being stolen, taking into account its cost, the amount of wear it has been shown to have had, its condition as proved to have been at the time of taking; as to the other property, you will fix its value at such amount as you find from the evidence such property has been proven to have been worth at the time and place of taking.”
Now, even if such evidence is admissible in certain [393]*393cases — as where the clothes have a peculiar value from' some specific cause — it cannot apply to mere ready made clothing which can be bought at any clothing house, and therefore was not applicable to this cause. The seventh paragraph of the instructions, therefore, was clearly erroneous.
Under the rule announced by the court below, a witness, smarting under the loss of his property, might swear that a handkerchief costing 50 cents was worth $50 to Mm, or a hat which cost $3 was worth to him $300. Such a rule practically nullifies the statute which makes the stealing of the goods of the value of $35 a felony.
In Engster v. State, 11 Neb., 539, concurred in by Judge Cobb, it was held “ on the trial of one E. for receiving stolen goods the statute making the receiving of such goods of the value of $35 and upwards a felony, that it devolved on the state to prove by competent testimony that the value of the goods was at least $35.”
A witness, before he is competent to testify as to the value of property, must show by his testimony that he has knowledge of the value of such property.
The rule announced in that case is based on justice and should be adhered to unless there are good reasons for overturning it, which should be stated in the opinion.
In the brief of the attorney general it is said “it is not the policy of the law to discount the value or give rebates or special rates ” to the thief. That is true. But neither has a court any right or authority, except mere force, to declare that a felony which the proof fails to show is such under the statutes. It is the duty of courts to administer the law, and it is a reproach upon any tribunal to allow a fictitious value to be placed upon stoleñ property in order to convict the accused of an offense higher than the facts will justify.
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Cases cited by counsel are referred to in opinion.
Maxwell, J.
The plaintiffs in error were indicted in Lancaster county for willfully and maliciously, in the day time, breaking into the sleeping rooms of George Maxwell and Ed. Thompson in a dwelling house in said county, on the 17th day of November, 1888, with the intent to steal; and that they did at said time and place unlawfully, willfully, and feloniously steal, take, and carry away property of the said Maxwell and Thompson of the value of forty-eight dollars.
On the trial of the cause the jury returned a verdict of guilty against both of the plaintiffs in error, and found the value of the goods stolen to be 836. They were thereupon sentenced to imprisonment in the penitentiary for two years.
The principal errors assigned in this court relate to the sufficiency of the testimony, and to the giving of the seventh paragraph of the instructions.
George Maxwell, a witness called by the state, after testifying to the loss of the goods in controversy, testified;
Q. .What is this suit of clothes worth?
A., I valued them at that time-
(Houston — I object, as no foundation is laid to show this man is competent to testify to value.)
Q. Were these tailor made clothes?
A. No, sir.
Q,. Were the coat and vest?
A. No, hand-me-downs.
Q. How long had you worn them?
[391]*391A. I had worn them seven months.
Q,. What did they cost?
A. They cost me $25.
Q. How much were they damaged by wearing ?
A. I had worn them for a Sunday suit.
Q,. You may state what this suit of clothes were worth at the time they were taken from the room.
(Houston — I object, till it is shown that the witness is competent to testify.)
A. I stated on my word and honor that they were worth $20 to me.
Q,. Did you lose anything else?
A. I lost a revolver.
The Court — Where is that suit of clothes?
Stearns — They only found a pair of pants.
The Court — Are they there?
Stearns — Yes, sir.
Q,. How long had you had this revolver ?
A. Three years.
Q,. Would you recognize it if you saw it again?
A. Yes, sir,
Q. Is that it?
Q,. Did you find it again?
A. I did not see it again.
Q,. What kind of a revolver was that?
A. It was an American bull dog.
Q. How much had it been used?
A. I don’t know, prior to my buying it, whether it had been used or not. I said three years I had it.
Q,. Had you used it much ?
A. No, sir; I had carried it that length of time when I had been traveling.
Q. What was the fair market value of that revolver when taken?
A. Five dollars.
[392]*392(Houston — I object, as not shown competent to testify as to the value.)
Q. You bought and sold revolvers and saw what they sold for in the market?
A. I bought them and never sold any.
Q,. By buying them do you know what they were' worth ?
A. Yes.
Q. What was this revolver worth in the market?
. (Houston — I object, because he has not shown himself competent to testify as to the value of these goods.)
Q. State what the fair market value of this revolver was.
A. Well, I stated it was worth $5.
Upon this testimony the court instructed the jury as follows : “ If you find the defendants, or either of them, guilty of larceny, then in arriving at the value of the goods stolen you are instructed that you must determine this question from evidence before you, the same as any other fact necessary to the determination of the guilt or innocence of the defendants. Nothing must be assumed or taken for granted against the defendants, and in fixing the value of goods you must be satisfied, beyond a reasonable ' doubt, from the evidence that the value of the goods stolen is the amount fixed by you in your verdict. In fixing the value of goods you are not to be entirely governed by the price they would bring if sold as second-hand goods, but as to wearing apparel you will find its real value to the owner at the time of its being stolen, taking into account its cost, the amount of wear it has been shown to have had, its condition as proved to have been at the time of taking; as to the other property, you will fix its value at such amount as you find from the evidence such property has been proven to have been worth at the time and place of taking.”
Now, even if such evidence is admissible in certain [393]*393cases — as where the clothes have a peculiar value from' some specific cause — it cannot apply to mere ready made clothing which can be bought at any clothing house, and therefore was not applicable to this cause. The seventh paragraph of the instructions, therefore, was clearly erroneous.
Under the rule announced by the court below, a witness, smarting under the loss of his property, might swear that a handkerchief costing 50 cents was worth $50 to Mm, or a hat which cost $3 was worth to him $300. Such a rule practically nullifies the statute which makes the stealing of the goods of the value of $35 a felony.
In Engster v. State, 11 Neb., 539, concurred in by Judge Cobb, it was held “ on the trial of one E. for receiving stolen goods the statute making the receiving of such goods of the value of $35 and upwards a felony, that it devolved on the state to prove by competent testimony that the value of the goods was at least $35.”
A witness, before he is competent to testify as to the value of property, must show by his testimony that he has knowledge of the value of such property.
The rule announced in that case is based on justice and should be adhered to unless there are good reasons for overturning it, which should be stated in the opinion.
In the brief of the attorney general it is said “it is not the policy of the law to discount the value or give rebates or special rates ” to the thief. That is true. But neither has a court any right or authority, except mere force, to declare that a felony which the proof fails to show is such under the statutes. It is the duty of courts to administer the law, and it is a reproach upon any tribunal to allow a fictitious value to be placed upon stoleñ property in order to convict the accused of an offense higher than the facts will justify.
How can it be said that such a tribunal is impartial — holding the scales of justice even between the accused and [394]*394the state. Had the legislature intended to change the rule in regard to the mode of proving values in cases of this kind, no doubt it would explicitly have so declared.
The precise question here presented was before this court in Engster v. State, 11 Neb., and it said: “A party who is permitted to testify as to the value of property must show by his testimony that he possesses knowledge as to such value, otherwise his testimony is mere conjecture and is wholly unreliable. In an indictment where the value of the property must be or exceed $35 to constitute a felony, such value must be proved, like any other fact upon which a conviction depends, beyond a reasonable doubt. This is a material fact, without proof of which the prosecution must fail.”
In that case one Signor was called as a witness on behalf of the state and testified:
Q,. Are you a judge of clothing?
A. Yes, sir, of mine.
And showing no other knowledge he was held not qualified to testify as to values.
The proof in this case clearly shows that the real value of the stolen goods was much less than $35, and the conviction of a felony was wrong, and is set aside, and the cause remanded to the district court.
Reversed and remanded.
Cobb, J., concurs.