(dissenting).
I dissent. It is a well known fact of common and general knowledge that a 1947 2-door Ford sedan in excellent condition was worth more than $50 when it was stolen in March, 1950. There is sufficient notoriety of the value of this model car for the trial court to properly take judicial notice thereof. But the majority opinion quotes from State v. Estrada, 119 Utah 425, 227 P. 2d 247, and cites State v. Green, 78 Utah 580, 6 P. 2d 177, for the proposition that in a criminal case the constitutional right to a trial by jury may not be invaded by the judge indicating to the jury that any of the facts which constitute the crime charged are established by the evidence.
Article I, Section 10, of the Constitution of Utah, states:
“In capital cases the right of trial by jury shall remain inviolate. * %
Article I, Section 12, further provides in part:
«* * * The accused shall not be compelled to give evidence against himself * *
*333State v. Green, supra, was an appeal from a conviction of murder in the first degree. The defendant had not taken the witness stand in his own behalf, yet the jury was instructed :
“It is not controverted in this case that the defendant Delbert Green on the 4th day of January, 1930 shot the deceased James Green with a pistol, inflicting upon said James Green mortal wounds from which wounds, said James Green died on said 4th day of January 1930.”
The court then made the statement which was' later quoted in the Estrada case and in the majority opinion in this case to the effect that there had been an infringement of the constitutional right to a trial by jury. The doctrine announced in the Green case should be confined to the facts of that case — a case involving capital punishment where the instruction prejudiced the defendant by calling attention to the fact that he had not taken the witness stand to controvert the evidence that he had shot and killed the deceased.
In State v. Estrada, supra, the material fact in issue was the prosecutrix’s age in a prosecution for carnal knowledge, The court admitted in evidence an improper certificate of the girl’s birth date to which defendant objected, and then the defendant was curtailed in cross-examination upon this-matter. The jury was instructed that the uncontradicated evidence showed the girl’s age to be under 18. We held the1 instruction to be prejudicial error, quoting at length from State v. Green, adding however that:
“By this opinion, it is not intended to hold that, if a material fact is both uncontradicted and free from doubt, it is prejudicial error per se for the court to recite it as a fact or to state that the evidence related to it is uncontradicted. It is not a good policy to so instruct, but under some circumstances it may not be prejudicial error so to do.”
In State v. Crank, 105 Utah 332, 364, 142 P. 2d 178, 193, 170 A. L. R. 542, we held in a prosecution for murder that it was error for the trial court to state that it had reached *334the conclusion that a particular conversation was corroborated by the facts and circumstances, which facts and circumstances tended to establish a corpus delicti. The court cited State v. Green for the proposition that in this jurisdiction
“it is exclusively in the province of the jury to pass upon the evidence, and the court may not make any comment thereon.”
The rule was briefly mentioned in State v. Peterson, 110 Utah 413, 425, 174 P. 2d 843, 849, and in State v. Musser, 110 Utah 534, 559, 175 P. 2d 724, 738, that a court should not comment upon the evidence. In the latter case, the trial court stated in reference to a pamphlet on plural marriage of which defendant was one of the authors, “ ‘There are lots of nefarious books written. I will exclude that’.” A review of these cases reveals in each instance that the rule promulgated in State v. Green was resorted to when this court wished to denounce as error some comment by the trial judge which plainly appears to be biased and harmful to the defendant.
The facts of this case are different. Defendant argued that the jury should be directed to find a verdict of not guilty upon the ground that there was no evidence as to the' value of this automobile. The court took judicial notice of the obvious fact that the car was worth more than $50 and so instructed the jury. The doctrine of judicial notice of generally well known facts has been invoked in many criminal cases. Wharton’s Criminal Evidence, 10th Ed. Vol. 1, Chapter VI. The rule should be the same in civil cases as in criminal cases, American Law Institute, Model Code of Evidence, Rule 1, 2 and 801. The majority opinion incorrectly assumes that in this state our Constitution forbids the trial court in a criminal case to take judicial notice of any of the facts necessary to proof of the offense. I believe we are carrying the rule of State v. Green too far.
The fact that this car was a 1947 model in excellent condition is itself very good evidence of the fact that it was *335worth substantially more than $50. This is a chattel with which we are all familiar and no reasonable mind could believe that it was worth less than $50. Thus, the testimony of the owner of the automobile as to its make, model and condition made out a prima facie case as to its value. Instead of presenting evidence to rebut what the value of the car was, defendant seeks a reversal of the conviction contending that the State failed in its burden of proof. But the proof is plainly there.
The argument is made, that if the court could properly have taken judicial notice of the value of the car, it erred in instructing the jury that:
“In this case you will take the value of this property as being in excess of $50.00, and therefore the defendant if he is guilty at all, is guilty of grand larceny
that this instruction in effect precluded the jury from exercising its illogical discretion in finding the defendant guilty of petit larceny. In State v. Angle, 61 Utah 432, 215 P. 531, the question was considered whether the trial court erred in instructing the jury that the verdict must be either that the defendants were guilty of grand larceny as charged in the information or not guilty. It is there decided that where there is no evidence to reduce the offense to the lesser grade of petit larceny, error cannot be predicated on the failure to give an instruction upon the lesser offense.
In order to scrupulously refrain from permitting the trial court to invade the province of the jury, the majority opinion suggests that the court could have instructed the jury that
“you -may take into consideration your knowledge acquired in the every day affairs of life in determining what value you will place upon said automobile.”
The question thus arises: If the court takes judicial notice of a fact, or at least believes a fact is so obvious that proof thereof is unnecessary, in what manner must he see that a *336just verdict does not fail for want of that fact? How should his decision to take judicial notice of a fact be transmitted to the jury? Mr. Justice Crockett believes it to be prejudicial error if the trial court tells the jury forthright, what is obviously so — that the car is worth more than $50. He would rather have the jury instructed that they are to draw from their own everyday experience in determining what the car is worth.
There is no constitutional provision which prohibits the trial judge from taking judicial notice in a criminal case of a fact, sufficiently notorious. If the fact is so well known that judicial notice should be taken thereof, it then becomes the duty of the court to inform the jury that the matter should be taken to be established. Counsel not contending that the fact is controverted, the jury should be instructed as to what the fact is. The trial court in this case stated in effect that the evidence as to value of the property stolen warranted conviction of grand larceny, if defendant was guilty at all. The jury was fully instructed that before the defendant could be found guilty of grand larceny they must believe beyond a reasonable doubt that the defendant drove away the Ford automobile, with a felonious intent of stealing said property and permanently depriving the owner thereof. The jury was left free to determine the ultimate fact of guilt or innocence.
The prejudicial error in the Green and Estrada cases, et al. is obvious. Here the common sense and fairness in the way the trial court conducted the case is equally apparent. This is not a case of denying the defendant any basic right to an impartial trial by jury, but is an instance of creating a loophole in the law through which defendant escapes only to a new trial. Adequate safeguards against any abuse of the rule permitting a trial court to take judicial notice of commonly known facts are provided by an appeal to this court.
I believe the wiser policy is to allow the trial court to comment upon the evidence and to advise the jury in a *337proper case, so long as it is done impartially. Dean Wig-more in Section 2551 of the 3rd Edition of his treatise on Evidence states:
“The practice of such comment existed at common law since the beginning of jury trial, and must be regarded historically as an essential and inseparable part of jury trial. But in the course of a popular political movement, sweeping through the nation a little more than a century ago, this part of the trial judge’s function was taken from him by statute or by constitution in most of the States. * * * In the Federal Courts of the United States the orthodox practice has never been yielded up, and has served powerfully to maintain their prestige for justice.”
Jurisdictions in which the orthodox practice still exists are California, People v. Mason, 72 Cal. App. 2d 699, 165 P. 2d 481; New York, People v. Buccola, 239 App. Div. 356, 267 N. Y. S. 248; Michigan, People v. Padgett, 306 Mich. 545, 11 N. W. 2d 235; Connecticut, Schiavo v. Cozzolino, 134 Conn. 388, 57 A. 2d 723, 3 A. L. R. 2d 214; New Jersey, State v. Giampietro, 107 N. J. L. 120, 150 A. 367; and Pennsylvania, Com. v. Pursel, 110 Pa. Super. 110, 167 A. 399. In this jurisdiction, we have only applied the rule in those cases where the comment upon, the evidence was in fact prejudicial. We should not take those statements to mean that any comment, regardless of its harmful character, is automatically grounds for reversal. Our Constitution does not require us to so hold.
“That the preservation of the pristine power of the Court to comment and advise the jury is essential to the efficient working of the jury system, and that the deprivation of that power is highly injurious has been often pointed out by judges and lawyers of experience.” Wigmore on Evidence, 3d Ed. Section 2551 A.
And a fortiori, we should not reverse the trial court for taking judicial notice of such an obvious fact in this case upon the misconception that it is unconstitutional, or that it is a comment upon the evidence, or that it is prejudicial. I would therefore affirm the judgment.