This is аn appeal from a conviction and sentence on a charge of grand larceny, whеrein the state sought to show the defendants guilty of stealing eleven chickens of the value of morе than twenty-five dollars.
One of the assignments of error being that the evidence was insufficient to justify the verdict, and that the court therefore erred in not granting either the motion in arrest of judgment or for a new triаl, it *58 will be necessary to detail in a general way the evidence relied upon by the state for сonviction.
At about 3:00 o’clock, A. M., July 9, 1927, one Col-son, a farmer and keeper of chickens, was watching for chicken thieves that had previously operated in the vicinity of his home. He heard an аutomobile leave the premises of one Peterson, some distance away, and travel towards the Colson home. It stopped near his house and he secreted himself, gun in hand, in the bushes near by. Thе appellant Duncan approached a gasoline tank near the house with a five-gallon can and began to fill it from the tank. He then started for the chicken house, but was stopped by Colson and taken in charge. In the meantime, the automobile stood in front of the premises and chickens were heard squawking in the car. The auto, after a few movements up and down the road, disappeared, but later was overhauled by a deputy sheriff and some assistants, who encountered the appellant Holland driving the car and retracing the road it had first taken, due to the fact that the road ended in a cul de sac. About a mile nearer the end of the road were found a large number of chiсkens that had just been killed by wringing their necks. They were of three kinds, — Plymouth Rocks, Rhode Island Reds, and one black chicken of an unnamed variety. In the auto were found three ldnds of chicken feathers corresponding to the variety of chickens that were just killed. The Plymouth Rock chickens had just been stolen frоm the Peterson home. The feet of the chickens had been tied with twine of a certain character, and a ball of such twine was found in the auto. The car itself was recognized by Colson as one he had observed near his place about a month before. It was admittedly the car in which both аppellants had come to the scene of the larceny.
*59 Enough has been detailed of thе state’s case to show that the question of guilt was for the jury, and that no error was committed by the cоurt in refusing the motions made by appellants.
It is also urged that the court erred in refusing to hold that no markеt value of the chickens stolen from Peterson was established. The record discloses that Petеrson has, for years, been breeding Plymouth Eocks in an endeavor to establish a high-grade flock for breeding purposes. To that end, he has purchased from time to time high-grade cockerels and has, by a selection process each year, succeeded in developing a flock thаt produces very large eggs that sell above the normal price for standards. He testified that the chickens were worth at least five dollars apiece for breeding purposes, and that hе never raised them for food consumption, although at times they had eaten some at home. A neighbor, Mr. "Wallace, also gave some testimony that chickens of this character would be worth about twenty-five dollars for a trio of. two hens and one cockerel.
It is said that the court should havе instructed the jury that the appellants could only have been found guilty of petit larceny, since thе market value of the chickens, if sold for food consumption, would be less than twenty-five dollars. There was no evidence controverting the testimony of the state as to the value of the chickens for breeding purposes, and we think it clearly sufficient to base a verdict thereon. It also seеms obvious that the market value to be arrived at, in such a case as this, does not mean the markеt value for food consumption, but the market value for the purposes for which the thing taken is intended and best adapted. 36 C. J. 801.
Prize animals, of whatever character, are not sold in the market for fоod consumption, and it would be
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as unjust to say that high-grade selected chickens should be valued by the рound for food consumption as to say that a prize-winning milch cow should be valued by a consideration of what a packer would pay per pound for the animal to be used for beef.
Fuson v. Commonwealth,
The last assignment of error is that counsel for the state committed prejudicial error in his opening statement. While an argument might well be made that the prosecutor’s statement was fully justified by the evidence whiсh he later adduced, it appears that, upon objection, the court instructed the jury to disregard the statement. We have repeatedly held that a statement of a prosecutor, not made in bad faith, to which objection is timely made and the jury instructed to disregard it, is not reversible error. See
State v. Edelstein,
The judgment is affirmed.
Fullerton, C. J., Main, Holcomb, and Beals, JJ., concur.