(dissenting):
I dissent.
There is certainly no doubt, and the majority opinion here concedes, that a Government price list is not conclusive on the issue of value, and that value is a matter which must be determined by the court-martial. But I am firmly convinced that the following instructions are erroneous and serve to withdraw that determination from the court’s consideration. The portion of the instructions to which I refer provided as follows:
. . 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.” [Emphasis supplied.]
The court members, under the above instructions, could well have believed that if they found the uniform was in a “new or a substantially new condition” the Government price list was controlling, but if they found it to be used clothing, or as phrased in the instructions, “in a condition requiring depreciation because of age or use,” they could consider other evidence of value and find a value lesser than that listed in the official publication.
This, in effect, changed the issue before the -court-martial from a requirement that they determined value to one that they ascertain whether the clothing was new, or substantially new, or used. And only if they found that the age or use of the clothing required them to consider depreciation need they go on to a determination of value. If they found the clothing was in new or substantially new condition, the price is “deemed” to be that contained in the Government price list. And, in this respect, it is noted that there was no evidence of use of the clothing. It was unworn and owned by the victim only six weeks. “Deemed,” as used here, at the very least, connotes that the price is “accepted as *49established fact” or “considered to be” that listed in the official publication. Cf. 551 Fifth Avenue v Wellingbrook, 103 NYS 2d 265, 199 Misc 500. Some cases go even further and consider the use of “deemed” as creating a conclusive presumption. See H. P. Coffee Company v Reconstruction Finance Corp. 215 F 2d 818 (US Emer CA, Mo) (1954). For other definitions, see 11 Words and Phrases (Perm ed), page 478, et seq.
This instruction deprived the court-martial of its right and duty to determine value and amounted to a directed verdict. The law officer, by his instructions, usurped the exclusive duty of the court-martial to make this determination and in doing so committed prejudicial error. The accused was entitled to have the essential element of value determined by the members of the court.
I believe the language of paragraph 200a, Manual for Courts-Martial, United States, 1951, concerning the use of Government price lists, from which the law officer here apparently obtained the objectionable instructions, was intended to provide a ready source of evidence of value in a situation where there is no market for the goods, i.e., Government issue, and where, consequently, evidence of market value might otherwise be lacking. In such cases, the jury would start with the new price in the Government price list as evidence of market value, and reduce that amount for depreciation through age and use if appropriate. However, where there is other evidence, e.g., as the expert testimony in the instant case, as to what the market value is, the matter must be submitted to the court-martial under proper instructions and they are the ones who determine how much weight shall be given the Government price list, as well as other evidence of value. The use of the word “deemed” in the context used here placed undue emphasis on the Government’s evidence and, as indicated above, actually removed the determination of value from the court’s consideration.
I would, therefore, reverse the decision of the board of review.