People v. Silbertrust

Mr. Justice Scott delivered the opinion of the court: Larceny is thus defined: “Larceny is the felonious stealing, taking and carrying, leading, riding, or driving away the personal goods of another. Larceny shall embrace every theft which deprives another of his money or other personal property, or those means or muniments by which the right and title to property, real or personal, may be ascertained. Private stealing from the person of another, and from a house in the daytime, shall be deemed larceny. Larceny may also be committed by feloniously taking and carrying away any bond, bill, note, receipt or any instrument of writing of value to the owner.” (Hurd’s Stat. 1905, chap. 38, sec. 167.) There was no proof whatever to support the averments of the indictment in reference to the larceny of the bank notes. To sustain the conviction it is necessary that an averment of the value of the bill of exchange should appear in the indictment. (Brown v. People, 173 Ill. 34.) Each count charged thát the bill of exchange was the property of Esther Silbertrust and that it was “of the value of $150 to the First National Bank of Chicago,” and neither count contained any other averment in reference to the value of the bill of exchange. It is contended on the part of plaintiff in error that in this 'condition of the record the judgment should have been arrested for lack of a proper averment of value in the indictment, while defendant in error contends that the allegation that the draft was of value to the First National Bank of Chicago is substantially a general allegation of value, or if not, that the words “to the First National Bank of Chicago” , may be rejected as surplusage. In State v. James, 58 N. H. 67, it was said in reference to a printed list of names and dates, being a list kept by the owner of a newspaper of the names of the subscribers and the dates of the expiration of the subscriptions, “its value as a statutory subject of larceny is its market value, and evidence that it is worth $20 to its owner and worth nothing to anybody else does not show its market value to -be $20. To be of the market value of $20 it must be capable of being sold for that sum at a fairly conducted sale,—at a sale conducted with reasonable care and diligence in respect to time, place and circumstances, for the purpose of obtaining the highest price.” In Clark v. State, 23 Tex. App. 612, Smith v. State, 44 S. W. Rep. (Tex.) 520, and People v. Cole, 54 Mich. 238, it was held that the value which must be proven is the market value of the property, from which the conclusion is, that a general allegation of value in an indictment means market value. Under these authorities it cannot be held that an averment that the property was of a certain value “to the First National Bank of Chicago” is substantially the same as a general averment of value. Whether in this particular case the indictment would have been good had it averred the value of the bill of exchange to Esther Silbertrust, the owner thereof, and whether proof of its value to her, in the absence of proof of its market value, would warrant a conviction under the provisions of our Criminal Code, are questions not here presented. As the words “to the First National Bank of Chicago” cannot be stricken out of the averment with reference to value without materially changing the meaning of the charge, those words cannot be rejected as surplusage. As the allegation relative to value is not such as the law' requires, the indictment is as though it contained no averment of value. For this reason the judgment should have been arrested. Davis v. State, 40 Ga. 229. The judgment of the criminal court will be reversed. Judgment reversed.