State v. White

25 Wis. 359

Opinion

Dixoh, C. J.

This case comes up for our decision under section 8 of cb. 180, R. S., which, provides, that if upon the trial of any person who shall be convicted in the circuit court, any question of law shall arise, which, in the opinion of the judge, shall be so important or so doubtful as to require the decision of the supreme court, he shall, if the defendant desire it, or consent thereto, report the case so far as may be necessary to present the question of law arising therein, and thereupon all proceedings in that court shall be stayed. The aggregate value of the goods and chattels stolen is charged in the indictment to have been the sum of $210, and all the other facts necessary to be considered are stated in the report of the judge, which reads as follows:

“The defendant was indicted for larceny, at the September term, 1868. The jury might have found from the evidence that the value of the property exceeded $100, or that it was less than $100. The jury returned a general verdict of guilty, but failed to find the value of the property stolen. Defendant moves for a new trial; and I wish to be advised, 1. Whether a general verdict finds that the stolen property is of the value charged in the indictment; and 2. If not, whether it can be presumed that the property is of some value, and the defendant can be sentenced for petit larceny.”

The provisions of statute prescribing the punishment for larceny, and material to be examined in connection with the question to be decided, are found in sections 16 and 17 of ch. 165, R. S. Section 16 provides, that every person who shall commit the crime of larceny by stealing of the property of another, any money, goods or chattels, etc., if the property stolen shall exceed the value of one hundred dollars, shall be punished by imprisonment in the state prison not more than three years nor less than one year; and if the property stolen shall not exceed the value of one hundred dollars, and exceeding .twenty dollars, he shall be punished by imprisonment in the state prison, not exceeding one year nor less than six months, or by imprisonment in the county jail not more than one year nor less than three months, or by fine, not exceeding three hundred dollars. Section 17, by which, the offense of petit larceny is created and defined, declares that every justice of the peace shall have jurisdiction concurrent with the ■ circuit court of all larcenies mentioned in the sixteenth section, when the money' or other property stolen shall not be alleged to exceed the value of twenty dollars, and of all other larcenies whatever, when the money or property stolen shall not be alleged to exceed the value of ten dollars, in all which cases the punishment shall be by fine not exceeding fifty dollars,- or by imprisonment in the county jail for the term of six months, or less, at the discretion of the court, saving to every person who shall be convicted before the justice the right of appeal as in other cases. It will be seen from these provisions, that two distinct grades of grand larceny are fixed by the statute, and that the question presented is quite as much for which of these the defendant shall be punished, if at all, as whether he shall be punished for petit larceny. Whether the conviction is such as to authorize sentence for petit larceny J provided it were insufficient for the purpose of punishing the defendant for the higher offense charged in the indictment, is a question not required to be answered, since we are all of opinion that the verdict as found is, in form, good and sufficient for the latter purpose.

This question as to the sufficiency of a general verdict of guilty in prosecutions of this kind, where the value of- the property stolen constitutes- an essential element in the definition of the crime, and the mode of punishment or term of imprisonment is made to depend upon it, is one which has undergone considerable discussion in the courts, and about which there appears to be some conflict of opinion. In New Hampshire it is held that the value of the property must be specially found by the judge. In that state, however, it is provided by statute, that, if the property stolen be of less value than twenty dollars, the person convicted, besides punishment by fine or imprisonment, “stall be sentenced to pay tbe owner treble tbe value of tbe property so stolen, -deducting from sucb treble value tbe value of any part of said property tbat may be returned.” And in case of tbe larceny of property of greater value than twenty dollars, it is provided tbat “tbe owner of sucb property, upon sucb conviction, shall have judgment and execution in common form against sucb convict for tbe value thereof, deducting tbe value of sucb part as may be returned.” Locke v. The State, 32 N. H. 108. Tbe peculiar character of this legislation furnishes ample reason for tbe rule in tbat state; but tbe absence of tbe same or any like regulations in this state seems to render tbe rule inapplicable here. But tbe cases in Illinois and Iowa — tbe latter decided on tbe authority of tbe former — seem not to have proceeded on any sucb peculiar ground, but to have held, under statutes in substance like our own, tbat a special finding of value by tbe jury was necessary. 1 Scam. 392; 3 Gilman, 53; 1 Greene, 316. On tbe other band, tbe supreme court of Ohio, in a remarkably clear and well-reasoned opinion in a recent case, bold the very opposite. Schoonover v. The State, 17 Ohio St. 294. Tbe opinion is valuable, not only as a collection and review of all tbe authorities bearing upon tbe question, but as a discussion of tbe effect to be given to a general verdict of guilty, when construed, as it always should be, with reference to tbe facts charged in tbe indictment. This last is a consideration which seems to have been overlooked entirely in those cases in which tbe contrary doctrine has been held. It very clearly and satisfactorily appears from tbe opinion, tbat, both on principle and authority, a simple verdict of guilty pronounced by tbe jury, and which, in. legal phrase, and as usually,recorded by tbe clerk, signifies “guilty in manner and form as charged in tbe indictment,” i's a finding of the truth of all tbe material averments constituting tbe offense charged, including tbe averment of value, so far as that is material, and that, on such verdict, the proper judgment for the offense maybe awarded against the prisoner. The court hold that the verdict in such case, though not to be understood, perhaps, as finding the value of the property stolen to be fully that stated in the indictment, yet implies a finding of value at least equal to the sum necessary to constitute the higher offense, which is that charged; for beyond that sum the particular value is wholly immaterial, and the jury are not supposed to inquire. The decision is sustained by several well-considered cases, which are referred to in the opinion, and we think announces the correct rule of law upon the question here presented.' And especially do we so regard it where no exceptions are taken, or error complained of, with respect to the instructions given to the jury. In the absence of such exceptions, and without the charge of the court before us, we are bound to assume that the jury were correctly instructed, according to the usual practice in such cases, that to authorize a general verdict of guilty they must find the value of the property stolen to have been at least the sum of one hundred dollars ; and if they found that it was of less than .that value, they should state the value in an express finding, in order that the court might know whether it was over or under twenty dollars, so as to pass sentence for the lower grade of grand larceny, or for petit larceny, agreeably to the nature of the .crime found to have been committed. If it appeared, however, that the jury' were not so instructed, but were told that they might find a general verdict of guilty, regardless of the matter of the value, or whether- it was over or under one hundred dollars, or over or under twenty dollars, a very different question would be presented, and one somewhat like that involved in Locke v. The State, supra; and it would no doubt be attended by the same result. Such instruction would be clearly erroneous, and judgment upon the verdict reversed or .arrested.- .

.■ It follows, from these views, that the circuit court should proceed to give judgment against the defendant ■for the offense charged in the indictment, and of which -he appears to have been lawfully convicted; and the court must accordingly be so advised and directed.

By the Court.— Let the decision of this court- bé so certified. -