Opinion of the Court
ROBERT E. Quinn, Chief Judge:The accused was convicted by a general court-martial of larceny of clothing from a fellow soldier at Fort Hood, Texas, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. The question before us is the correctness of the law officer’s instruction on the value of an Army green uniform. The issue is important because of the effect of value on the sentence. Manual for Courts-Martial, United States, 1951, paragraph 127c, section A, Table of Maximum Punishments.
Among the articles of clothing stolen from the wall locker of Private H. L. Johnson was an Army green uniform. The uniform had been issued to Private Johnson about six weeks before the theft. It had never been worn, but the trousers “had been taken up” at the “Quartermaster when . . . issued” and were “marked on the waist band” with the last four digits of Johnson’s service number. The jacket was similarly marked. At trial counsel’s request, and over defense counsel’s objection, the court-martial took judicial notice of two current Department of the Army supply manuals which indicate that the value of the uniform was $36.15. The basis of the defense’s objection was that the manuals did not take into account the evidence as to the alteration and the markings on the uniform. In overruling the objection, the law officer “admonished” the court members that “the matter covered by the objections of the defense” would be considered in the final instructions to them.
To contest the values established by the prosecution, the defense called a witness who operated wholesale and retail clothing establishments in the vicinity of Fort Hood. The witness classified the uniform as “used” because it had been altered and marked. He estimated the retail value as $20.00, “taking into consideration” that it probably would have to be altered “a little.” The matter was considered by both trial and defense counsel in their final arguments. Trial counsel reviewed the testimony. He referred to the list price in the supply manuals and stressed the fact the victim had never worn the uniform and he “had only marked his serial number” in it. He argued there was “very little dispute” as to the value of the other articles of clothing; consequently, he said, “if you find beyond a reasonable doubt that the value of the Army green uniform is $36.15, . . . [that] will bring the value of all the property taken to a value in excess of $50.00.” On behalf of the accused, civilian defense counsel challenged the list price value for the uniform because of the alteration and the markings.
Two parts of the law officer’s instructions to the court were concerned with the subject of value. First, in enumer*47ating the elements of the offense, he advised the court-martial it must find beyond a reasonable doubt that the property described was of the “value alleged or of some lesser value, in which case the finding should be in the lesser amount.” Later, he instructed the court-martial as follows:
“Now, in connection with the value of the property allegedly stolen, it is to be determined by the legitimate market value at the time and place of the alleged theft. Market value may be established by testimony or by other legally competent admissible evidence emanating from any person who is familiar through training or experience with the market value in question, or by the testimony of a person who has ascertained the price of a similar article by adequate inquiry in the market involved. In this connection the court is advised that items of Government issue are deemed to have values equivalent to the •prices as listed therefor in official publications, provided they are in a new or a substantially new condition. Should the court find that such items are in a condition requiring depreciation because of age or use, the court may find any value that it may determine lesser than the value listed in the official publication.
“You are advised that if you have a reasonable doubt that the property was of the value alleged, but you are satisfied by legal and competent evidence beyond a reasonable doubt that the property was of a lesser value, you may, nevertheless, reach a finding of guilty; but in this event it will be necessary for you to modify the specification by exceptions and substitutions so that it will reflect a finding as to which you have no reasonable doubt. Thus, you may except the amount alleged and substitute therefor any lesser specific amount as to which you have no reasonable doubt; or you may except the amount alleged and substitute therefor one of the following phrases: $50.00 or less, and more than $20.00, or of some value not in excess of $20.00. If you are satisfied as to the substituted amount beyond a reasonable doubt in the event you should arrive at a finding of guilty by exceptions and substitutions, you should, after finally voting on your findings, ask me to come in to your closed session to assist you in putting your findings in proper form.” [Emphasis supplied.]
Appellate defense counsel contend the underscored part of the quoted instruction amounts to a direction to the court-martial to disregard the testimony of the defense witness and “to fix the value of the uniform at the amount found in the government price lists.” The crux of the contention is the word “deemed.”
Apparently, the challenged instruction is based upon a discussion of value in the Manual for Courts-Martial, United States, 1951, paragraph 200a, page 361. In an appropriate case, a Government price list is indeed competent evidence of market value; in fact, in some instances, it may be “the best method” of proving market value of Government issued property. United States v Steward, 6 USCMA 531, 20 CMR 247. But, the list is not conclusive of the issue. Value is an essential element of pleading and proof in the offense of larceny. United States v Steward, supra. It is a matter which must be determined by the court-martial. The value of an article of Government property set out in an official supply manual or a price list is merely an administrative determination of value. Under the rules of evidence in the military courts, the official publication is entitled to consideration, but it is not binding upon the court-martial. Manual for Courts-Martial, supra, paragraph 147a, page 274; United States v Covert, 6 USCMA 48, 19 CMR 174.
Many matters may be considered by the court-martial in determining value. For example, in United States v Leal, 7 USCMA 15, 21 CMR 141, there was the question of whether electron tubes stolen by the accused were, in fact, in usable condition at the time of the theft. In United States v Thornton, 8 USCMA 57, 23 CMR 281, the accused *48was charged, among other things, with unlawful purchase of a stolen Army pistol. The weapon had allegedly been stolen several months before the purchase. There was evidence the pistol had defective and missing parts when purchased by the accused; other evidence indicated a pistol of like kind was “readily obtainable” in the local market at a price less than the $53.00 shown as the price in the official Army price list. This Court sustained the use of a price list as evidence of market value. However, in view of the undisputed evidence of substantial defects in the pistol at the time it was obtained by the accused, we held that the prosecution had not met its burden of proving value in excess of $50.00, as alleged.
In our opinion, the instruction here fully and accurately advised the court-martial it was not bound by the price set out in the supply manual in determining the value of the uniform. When the price list was first introduced, the court members were specifically “admonished” by the law officer that there were other matters which had to be considered in the determination of value. These matters were referred to in the final instructions. It is significant that even trial counsel did not maintain the price list was conclusive of the question of value; he thought it necessary to emphasize the “newness” of the uniform. Considered alone, the word “deemed” has an emphasis which is not justified by the price list; but the instructions as a whole leave no room to doubt that the members of the court-martial fully understood the value of the uniform was an issue for their consideration, and that their determination was to be based upon all the evidence. There is no prejudice in the instructions.
The decision of the board of review is affirmed.
Judge LatimeR concurs.