Opinion
29916.
DECIDED JANUARY 12, 1943.
Certiorari; from Fulton superior court — Judge Pomeroy. September 16, 1942.
Wesley R. Asinof, for plaintiff in error.
Bond Almand, solicitor, John A. Boykin, solicitor-general, Durwood T. Pye, Lindley W. Camp, solicitor, contra.
1. Ownership was sufficiently proved.
2. The evidence was sufficient to connect the defendant with the animus furandi.
3. "In trials for simple larceny it must appear that the stolen property is of some value either generally or specially to the prosecutor. Direct proof of value, however, is not indispensable; it may be shown inferentially." Ayers v. State, 3 Ga. App. 305 (4) ( 59 S.E. 924).
DECIDED JANUARY 12, 1943.
The indictment charged the defendant with the theft of "$43 in money, the property of Emory Smith, and of the value of $43." The defendant was convicted; the certiorari was overruled and he excepted.
The prosecutor testified: "I met Frances Hunton on Friday night, February 13th, at Jack Foster's house at 282 Alexander Street, in Atlanta, Fulton County, Georgia. I did not take any drinks with Frances Hunton, and she did not take any in my presence. When I went into Jack Foster's house Frances Hunton and several other people were in the living room playing the juke organ, and she came right over to me and said, `Honey, give me a nickel to play a record;' and I gave her the nickel. I had never seen her before that time. She played that record and then came to me and asked for another nickel, and then asked me about a date. We went out in front of the house where my car was standing and got into the car together. We sat there five or ten minutes in the car and she said, `If you're not going to fill a date with me I have got to make some money,' and she started to go, and at that time I felt that my pocketbook was gone out of my hip pocket, and I said, `Wait a minute, you've got my money,' and then she ran into the front door of Foster's house and I ran right after her. She ran on through the house and through the back of the house and there Paul Sudan joined her and they got into Paul's car and were gone. Clara Foster, Jack Foster's wife, met me as I went through the living room after the Hunton girl, and said `They are gone.' I wheeled and went out the front door of the house, where I happened to meet John Gentry, a special officer, and he got into my car with me and we chased Paul and Frances Hunton around the block and back to Foster's house. When they came back I grabbed Frances Hunton's arm and said, `You've got my money.' At first she denied having it, and later said she did have it and to let her go into the house and get it where she had hidden it. When she went into the house she ran back through it again and got into Paul's car, and they were gone again. Then I called the police officers on the beat and we hunted her until about two o'clock Saturday morning. About two weeks before the trial of Paul Sudan's case he kept calling me up over the telephone, and wanted to give me back my money before the trial. I happened to be out each time he called, but one night he caught me at home and told me that he had left the money with Clara Foster and for me to come and get it. I called a cousin of mine to go with me and we went to Jack Foster's house and Clara Foster gave me the $43 that Paul Sudan had left with her for me, and I signed a receipt for it. At first Paul Sudan claimed that the $43 was his money, but he later admitted that Frances Hunton had given him the money as she passed through the house."
Another witness testified: "I am the owner of the premises at 282 Alexander Street and I was there on the night of February 14th when Frances Hunton was there with Emory Smith. They took a few drinks together, then a little while later I saw Frances and Paul Sudan going out the back together." Officer Slate testified: "We received a call to go to this place located on Alexander Street where this man, Emory Smith had had some money stolen. We questioned Frances Hunton, who admitted that she took the money and said she gave it to Paul Sudan. We questioned. Sudan and he admitted that he had the money. We then searched him and found that he had $43 in his bill-fold. He then told us that he did not know where the girl got the money from and did not know that it was stolen. We took the money from him and we are holding it for him at police headquarters. Paul Sudan, the defendant, admitted that he was living with Frances Hunton, and that on the particular morning when Emory Smith lost his money, at about two o'clock in the morning, Frances Hunton stole the $43 from Emory Smith and that as she ran through the house she handed the money to Paul Sudan and that Paul Sudan and the Hunton girl took a ride and he bought her something to eat and they later returned, where they were arrested."
The defendant made the following statement: "What Mr. Slate says about admitting to him that I got the money from the girl, Frances Hunton, is true. I did admit that, but I did not know that it was stolen. I am not guilty of this crime. The money I have at the police station is my own."
Counsel contends, first, that there was no proof that the missing money belonged to Emory Smith, as alleged. By referring to the evidence we find no merit in this contention. Second, that it does not appear the defendant had any knowledge that the money Frances Hunton handed to the defendant was stolen from Emory Smith. The judge who tried the case without the intervention of a jury was authorized to find, from the evidence as set forth hereinbefore, that the passing of the money from Frances Hunton to Sudan was part of the res gestae of the transaction, and thus the defendant was guilty as a principal. Third, counsel contends that the State failed to prove the value of the property alleged to have been stolen. It is elementary that in a trial for larceny some value of the article stolen must be alleged and proved. Direct proof of value, however, is not essential. Value may be shown by inference. In Ayers v. State, supra, this court said: "The courts will not take judicial cognizance that any article is of value, unless the law itself so designates it. . . However, value, just as any other matter of proof, may be shown circumstantially or inferentially, as well as directly or positively. . . Where the circumstances shown in the case are such as to indicate that an article, which according to common knowledge is usually useful, is, in the particular instance, in fact valuable, the reason of the rule ends, and the jury is authorized to find that the article in question is a thing of value. . . It was never the precedent of the common law, however, to extend the rule to absurdity in requiring proof of value."
It will be noticed from the record in this case that the defendant was charged with stealing $43 in money of the value of $43. The evidence throughout shows that the defendant stole $43 in money. We think it may be inferentially concluded that $43, the dollar being the unit of our monetary exchange, is of the value of $43. It seems that the whole trial proceeded on this theory, both as to the defendant and as to the State. The first mention of it is made in the brief of counsel for the defendant. To uphold this contention, it seems to us, would be to extend the rule of requiring proof of value "to absurdity." In Peterson v. State, 6 Ga. App. 491 ( 65 S.E. 311), this court held that proof that a portion of the articles alleged to have been stolen was sold for $12.50 was sufficient proof of value. Had the court not recognized that $12.50 was of value, proof of value in that case would not have been established. The State would have been bound to go further and prove the value of the unit of measurement of the $12.50. In this jurisdiction money is the measure of value, and the dollar is the unit of measurement. We find no merit in this contention.
Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.