| Ark. | Nov 19, 1904
(after stating the facts.) This is an appeal from a judgment convicting the defendant of grand larceny. On the trial before a jury in the circuit court, there was no objection made either to the evidence or to the instructions of the court, and the only ground on which a reversal is asked is that the evidence was not sufficient to show that the value of the property stolen exceeded $10, and that therefore defendant should not have been convicted of grand larceny.
It will be noticed that the money alleged to have been stolen is described in the indictment'as “$10.30 in gold and silver coin and paper currency, money of the United States.” The prosecuting witness in describing the money said that “there was one $2 paper bill, eight silver dollars and three silver dimes.” Now, so far as the silver coin is concerned, there can be little doubt that the testimony sufficiently identifies the silver money described in the indictment, for we know that the only silver money current in this State is that coined by the government, and comes within the description given in the indictment as money of the United States. But there is more room for doubt as to whether the statement of a witness that a “$2 paper, bill” was stolen sufficiently shows that to have been “money of the United States,” as charged in the indictment. A distinction is made by some courts between money of the United States and national bank notes, it being held that the term “money of the United States” includes gold, silver and the treasury notes of the government, which are by law made legal tender, for the payment of debts, but not national bank notes. This view seems to have been taken by this court in several' decisions, and is supported by decisions of other States. Marshall v. State, 71 Ark. 416; Murphy v. Smith, 49 Ark. 37" date_filed="1886-11-15" court="Ark." case_name="Murphy v. Smith">49 Ark. 37; Burton v. Brooks, 25 Ark. 215" date_filed="1868-12-15" court="Ark." case_name="Burton v. Brooks">25 Ark. 215; Hamilton v. State, 60 Ind. 193" date_filed="1877-11-15" court="Ind." case_name="Hamilton v. State">60 Ind. 193; Watson v. State, 64 Ga. 61" date_filed="1879-09-15" court="Ga." case_name="Watson v. State">64 Ga. 61.
In the case of Marshall v. State, supra, it was said that in this State it was unnecessary in an indictment for larceny of money to describe it as money of the United States, but, having alleged that it was money of that kind, it must be proved as alleged. In indictments for larceny of money, it is, under our statute, only necessary to describe it as gold, silver or paper money, as the case may be; and in this case if the indictment, instead of describing the money as money of the United States, had alleged that it was gold, silver and paper money of the kind that was current in this State, it would probably have covered all kinds of money in use in this State, and which circulates as such as its par value, including national bank notes, silver and gold certificates, as well as the legal tender treasury notes.
But, without discussing that question further, and assuming that the contention of appellant that, under the decisions above referred to, the proof failed to show the larceny of a $2 bill, paper money of the United States, we will proceed to consider his contention that the value of the other property stolen is not shown to exceed $10, and that, therefore, under our statute, the crime was only petit larceny, and that the conviction for grand larceny was improper. In considering that question, we must 'remember that the jury have found that the value of the property stolen was over $10. Not only that, but, as the instructions of the presiding judge are not set out in the bill of exceptions, it being only stated that no objection was made to them, we must .presume that these .instructions were correct in every respect. That being so, if we agree with counsel for appellant that the jury ought not to have considered the “$2 paper bill” in arriving at the value of the property stolen, we must assume that they were so instructed by the circuit judge, and that they obeyed the instruction, but found that the value of the watch and chain, together with the $8.30 in silver, exceeded $10. Now, the value of the $8.30 being known, the controversy is narrowed down to the question as to whether the evidence is sufficient to support the finding of the jury that the value of the watch and chain exceeded $1.70. The only testimony on this point was that the watch was a “small gold-looking watch,” and that the chain “was made of beads, and went around the neck.” The witness stated that the watch was given to her by a brakeman; that she did not know what it was worth, but that she would not have taken $10 for it. This is certainly very unsatisfactory evidence, for we are not certain whether the value that witness placed on the watch arose from the fact that it was a gift or whether she estimated its market value to be over $10. But the jury had the witness before them, and could get at her meaning much better than we can. As we must presume that the presiding judge instructed them that to constitute grand larceny the actual or market value of the property stolen must be over $10, their finding shows that they understood the value placed on the watch and chain by the witness to be her estimate of its market value, and not that arising from the fact that it was a gift. Now, as the witness had previously stated that she did not know what it was worth, her estimate of its value is certainly entitled to very little weight, and, although the witness said she would not have taken $10 for the watch, if the conviction of grand larceny depended alone on the value of the watch and chain, it could not be sustained. But a large discount may be made from her estimate of the value of those articles, and the conviction yet be sustained.
Taking into consideration the fact that her evidence went to the jury without objection, to be considered by them for what it was worth, and that the jury had before .them not only her estimate of the value of the watch, but her description of the watch and chain, we have concluded that the evidence is sufficient to support the finding that the watch and chain were worth over $1.70, and this, with the value of the silver coin, was over $10. Cohen v. State, 50 Ala. 108" date_filed="1874-01-15" court="Ala." case_name="Cohen v. State">50 Ala. 108.
So, leaving out of consideration the value of the $2 paper bill, the evidence is still sufficient to sustain the judgment, and it is therefore affirmed.