Cunningham v. State

236 S.W. 89, 90 Tex. Crim. 500, 1922 Tex. Crim. App. LEXIS 11

• Court: Court of Criminal Appeals of Texas
• Decided: January 11, 1922
• Docket: No. 6457.
• Status: Published

Opinions

HAWKINS, Judge.

Conviction was for felony theft of turkeys. Punishment two years in penitentiary.

The record is before us with no bills of exception.. An attempt is made to raise in this court for the first time the question as to the sufficiency of the evidence to justify a finding that the propg^aifcas of the value of fifty dollars or over. This question gested in the motion for new trial.

It has long been the settled rule in this State that “value” as it relates to stolen property, is the market value of the property at the time and place of taking, if it has a market value, and if not, the value would be the amount it would cost to replace it. Martinez v. State, 16 Texas Crim. App., 122; Cannon v. State, 18 Texas Crim. App., 172; Cooksie v. State, 26 Texas Crim. App., 72; Keipp v. State, 51 Texas Crim. Rep., 417, 103 S. W. Rep., 392; Ramon v. State, 98 S. W. Rep., 872. But when an improper measure of value is resorted to in the proof, this court is without power to correct it in the absence of objections at the time with proper exceptions reserved.

If the record in the instant case had been before Judge Davidson when he wrote the opinion in the Ramon case, supra, it could not have been more pertinent. We quote:

“It is contended in the motion for new trial, and urged here, that where value is required to be proved, it means ‘market value’ of the property alleged to have been stolen at the time and place of its theft. That question does not arise in this case. If the objection had been urged to the introduction of this testimony, or it had been insisted in the trial below, that this was not sufficient evidence, and was not the character of evidence introduceable, that the criterion should have been the market value, there might be some force in the position here. The fact that it may have been brought up for discussion in the motion for new trial is not sufficient. If the accused objects to the manner of proving the value during the trial, he must reserve his bill. He cannot sit by and permit proof of the value in an irregular or even an illegal way, without objection, and suggest it as a ground for new trial. The time for his objection or for raising the question is at the time of the introduction of the testimony. It is unquestionably true that value may become a very important question upon the trial of the theft of property where value is the criterion of punishment. In order to obtain a felony conviction, the proof must show at least $50 in value. Where it is insisted upon, in regard to the value of second-hand articles, as these were, if appellant had demanded that the market value be proved as the criterion, or had objected to the manner of proving it, insisting that the market value was the criterion, he would have placed himself in the attitude to have taken advantage of his contention here. Where it is insisted upon, the State must make proof of the market value, if it can; but where it is not done, then the real value can be shown. The’ manner of proving value will not be reversible, if erroneous, unless exception is reserved to such manner of proving it. This must be by bill of exceptions.”

As will be seen from the quotation, the question there was raised by motion for new trial. Here even that was not done. The proof as made supports the verdict, that is, the turkeys were shown to have been worth more than fifty dollars.

The judgment of the trial court is affirmed.

Affirmed.