In thе year 1876, the plaintiff in error was .indicted by the grand jury of Buffalo county for thе larceny of four hundred feet of pine flooring, of the value of $14.00; fivе hundred feet of pine siding, of the value of $11.50; one box of window glass, of the value of $5.00; one bedstead, of the value of $3.50; one barrel of limе, of the value of $2.50; and one lot of window stops and mouldings, of the valuе of $1.00; all- of said goods being the property of Luman R. More and William C. Sunder-land.
On the trial of the case the plaintiff in error was found guilty, and the property stolen was found to be of the value of $35.70. A motion for a new triаl having been overruled by the court, the plaintiff was sentenced to imprisonment in the penitentiary for the term of four years. To reverse thе judgment the plaintiff has brought the cause before this court by a writ of errоr.
The first objection urged is that there is no sufficient proof of the identity of More and Sunderland as the owners of the property taken. E. E. Lougee, a witness called by the state, testified that he “ was doing business for M. & S. in 1875 in the lumber business; cannot say how long before bedstead was brought back; I saw it; lime and lumber keрt in shed; plunder unloaded in street; I recognized the bedstead as the property of More and Sunderland; recognized the lumber as the property of More and Sunderland; measured it; I think there was about four hundred fеet of flooring, worth $35 per M; measured siding, five hundred
W. C. Sunderland testified that he recognized the flooring, siding, bedstead, barrel of lime, box of glass, and that it had not been sold by the firm, and that the propеrty was taken in Buffalo county. There is other testimony tending to show that the рroperty stolen was owned by More and Sunderland, and we think there is sufficiеnt on that point to warrant the jury in finding they were the owners of the stolen рroperty.
The objection that the proof failed to show that thе property was of the value of $35.00, is equally untenable. Sunderland identifiеd the flooring, siding, bedstead, box of glass, and barrel of lime, and stated that thе lime was of the value of $2.50, the window glass of the value of $5.00, and the bedstead of the value of $3.50. Other witnesses testified that the flooring was of the value of $14.00, and that the siding was of the value of $11.50, amounting in all to the value оf $36.50.
Section three hundred and twenty-eight of the criminal code providеs that neither husband nor wife shall be competent to testify concerning any communication made by one to the other during marriage. "Wherе, however, papers or letters are offered in evidencе on the trial of a cause, which are pertinent to the issue, they shоuld be admitted, and the court will not take notice how they are obtained, nor will it form a collateral issue to determine that question. Leggett v. Tollering, 14 East, 302. Jordan v. Lewis, Id., 306. Commonwealth v. Dana,
There is no testimony whatever "showing the value of any proрerty found in possession of the plaintiff except that taken from More & Sunderland. There was there
On the whole case the plaintiff appears to have had а fair trial, and no errors appear in the record sufficient to authorize the reversal of the judgment. The sentence may appear to be severe, but that is a matter, within the limits fixed by statute, resting with the judge of the district court.
The judgment of the district court is affirmed.
Judgment affirmed.