State v. Gerrish

Peters, C. J. The indictment charges the concealing of ¡stolen-goods, described in this manner; "One box containing ¡about twenty pounds of tobacco, one chest of tea, thirty pairs of .shoes and ten pairs of boots, all of great value, to wit, of the 'value of seventy-five dollars. ” Several matters are presented under the motion in arrest which we cannot consider, because they arise outside of the ■indictment. The only point presented under the motion that ¡may be seen upon the indictment itself, is that the goods are •collectively instead of separately valued. But this does not Tender the indictment void. It may have made it difficult to — 23 — maintain. The point relied on by the defense is that, inasmuch as all the alleged goods were not stolen and concealed, the entire value of the property may have attached to the goods which were not stolen, the others being valueless. But the indictment itself discloses no such weakness. The presumption arising from a g-eneral and unqualified verdict, is, that all the goods were stolen and secreted. The verdict saves the indictment, rendering the whole record good. State v. Hood, 51 Maine, 363; Commonwealth v. Lavery, 101 Mass. 207 ; 2 Bish. Proc. (3d ed.) § 714. The counsel for the respondent asserts that, as a matter of fact, all the articles were not stolen, and produces a copy of the evidence for our examination, that we may see that they were not. But that is a matter of proof and not of pleading. To meet any defect of proof the remedy would have been to request rulings appropriate to the facts, if not given without request. Or a motion to set the verdict aside as being- against the proof would have reached the alleged difficulty. The point is presented to us only upon exceptions to a refusal to sustain a motion in arrest. In the bill of exceptions a point is made upon the ruling of the judge in another question. It is inferable from the exceptions that there was no evidence introduced to show what the goods or any of them were worth, or whether worth anything or not; that is, no witness testified specifically upon the question of value. The judge was requested to tell the jury that the prosecution must prove that the articles named in the indictment wexe of value, and that the fact should be proved by evidence and was not to be merely inferred. The jury were instructed that the fact of value must be proved by evidence, but that they might infer from all of the evidence in the case whether the articles were of some value or not. This was correct. It was not required that the fact of value should be established by any separate proof. The jury may infer it from an inspection of the articles or from having heard them described by witnesses. The jury need not necessarily be informed of what they can see — 24 — for themselves. Many things speak their own value. Res ipsa loquitur. Suppose the stolen goods had been government gold pieces ; would it have occurred to any one that a witness should be called to swear that they were valuable? Bish. Cr. Proc. § 751, and cases; Com. v. Burke, 12 Allen, 182; Com. v. McKenney, 9 Gray, 114; Com. v. Lawless, 103 Mass. 431. Exceptions ovei'ruled. WaltoN, YiRGiN, Libbey, Foster and Haskell, JJ., concurred.