To constitute larceny, the property taken must be of some value. An indictment omitting to allege that the property was of value would be a bad indictment. But upon
If the indictment had alleged the value of the property stolen to exceed one hundred dollars, it would have been quite material to have the jury pass upon that question, if the value was in controversy, as it might materially affect the rights of the defendant in matter of punishment. The Rev. Sts. c. 126, § 17, recognize, with reference to simple larcenies and their punish-' ment, two classes of cases only; first, those where the property stolen exceeds the value of one hundred dollars; and secondly, cases where the value of the property does not exceed one hundred dollars.' The jurisdiction of the cases under the provisions of § 17 is wholly in the court of common pleas, in all the counties except Suffolk, where a municipal court exists with the same powers, and the punishment therein authorized cannot be inflicted by a justice of the peace. Rev. Sts. c. 82, § 25. As to cases pending in the court of common pleas upon indictment there found, there are the two grades of punishment already alluded to, and none other. If the value is less than one hundred dollars, it falls in the lowest grade. But all values under one hundred dollars are of this class, and may be punished by the like punishment, leaving a discretion with the court in each case of modifying the punishment, as the aggravating or mitigating circumstances may require, but not being restrained by the smaller or larger amounts of the value of the articles.
It was urged at the argument of this case, that by the provisions of § 18, another grade of larceny was created, and that the larcenies named in § 17, if the value of the property did nof exceed fifteen dollars, and all other larcenies where the value of the property did not exceed five dollars, might be punished by a less severe punishment.
A careful reading of § 18 will show that all its provisions have reference to the jurisdiction of justices of the peace,
We are aware that this construction of the statute gives the court of common pleas the power to punish a simple larceny under fifteen dollars more severely than a justice of the peace can do, thus apparently subjecting a criminal to a possible severe punishment or a milder one, as he may happen to be originally prosecuted in the higher or lower court. This is so, but it is no modern law, but has been so from the time of the adoption of the first constitution. It is distinctly found in St. 1784, c. 66. It was reenacted in the St. of 1804, c. 143, in terms too plain to afford ground for a doubt, the powers of the court being distinctly stated as to punishment on convictions in the particular court. Prior to the transfer from this court of the jurisdiction of all criminal cases, not capital, to the court of common pleas, there were three courts having concurrent jurisdiction of many offences of the smaller grade, in reference to which the extent of the punishment that might be inflicted for the same offence was materially different in each of these courts, giving the power in its most restricted form to justices of the peace, a greater range of punishment to the court of common
The result of this view of the statutes is this ; that when in the indictment the alleged value of the property stolen exceeds one hundred dollars, upon a trial thereof the defendant may deny the value to be truly alleged, and if he does so, the jury will be required to find the same by their verdict, if they find a verdict of guilty; but when in the indictment the alleged value of the property does not exceed one hundred dollars, it is not essential that the jury find by their verdict any precise sum as the value of the property. It is enough that the article stolen was of some value, and, that fact being essential to constitute a larceny, the general verdict of guilty must necessarily include the finding of value to the property alleged to be stolen.
The evidence in the present case, as to the nature of the property taken by the defendant, was sufficient to authorize the jury to find the same to be of some value, and the instructions of the court of common pleas were proper upon this point.
Exceptions overruled.