There is evidence of the ownership of the hog as alleged in the indictment sufficient to sustain the verdict in this case, so that it cannot be said that there is clearly a reasonable doubt on this question as to the guilt of the defendant. The value of the hog, however, is a material allegation, and the proof of it must be, beyond a reasonable doubt, as clear as the proof of any other allegation of the indictment. Every person convicted of larceny, if the property *Page 326 stolen exceeds the value of $15, is subject to imprisonment in the penitentiary not less than one nor more than ten years. If the property stolen is of the value of $15 or less, the person convicted is subject to be imprisoned in the county jail, or to labor in some place and under the terms mentioned in the statute, not exceeding one year and fined not exceeding $100. Proof of the value of the property beyond a reasonable doubt is required to ascertain the degree of the crime and the character and extent of the punishment.
Mrs. Grieser testified: "I have bought and sold hogs considerably. I am pretty well acquainted with the fair cash market value of sows and hogs. I have lived there on the farm ten years. I have had hogs on the farm all the time. * * * I bought and sold hogs three or four times a year, I suppose. I have had charge of the running of the farm and the selling and buying of the stock since my husband died. * * * I have made deals by myself. I consider that I am qualified to state the fair cash market value of the hogs as of July 19, 1931. Well, I cannot state as to the fair cash market value of this sow when it disappeared on that date. The sow was about to litter. I could not just say as to the market price. I would not take less than $25 for her. If the hog was put up for sale in the open market, where everyone had a chance to bid, she would have brought $25 at that time, I believe. I bought and sold hogs over there. During the year 1931 I bought one male hog. I bought brood sows, not to be fed. I bought and sold a lot of hogs in February, 1931." This was the only evidence for the People in regard to value.
Mrs. Grieser was competent to testify as to the value of the hog. Her testimony in chief was that she had bought and sold hogs for a number of years, but she did not claim to be informed in regard to market value. In fact, she testified that she could not state as to the market value of the sow when it disappeared but that she would not take less than $25 for her. This statement, of course, was incompetent. *Page 327 Her statement, "if the hog was put up for sale in the open market, where everyone had a chance to bid, she would have brought $25 at that time, I believe," was of little value as evidence. Nowhere did she testify to the market value of hogs, and her testimony was that she was not familiar with the market price. On the other hand, the defendant and two of his witnesses testified to the market price of hogs at the time, that they were acquainted with it, and that the market price was from six cents a pound to seven seventy-five at the top, and testimony was given tending to show that the weight of the sow was from 145 to 150 pounds, instead of about 200 pounds, as testified to by Mrs. Grieser. Testimony also showed that it was the custom to dock a sow that was with pig, when offered for sale on the market, from 40 to 60 or 70 pounds.
The defendant was a farmer, who raised and sold hogs. He lived in LaGrange, Missouri, where he owned his residence and a four-acre tract of land about four blocks from his home. He had a farm of nearly three hundred acres across the Mississippi river, on Long Island, in Adams county, Illinois. The two witnesses McPike and Wagner, mentioned in the opinion of the court, were truck drivers who hauled hogs for him to the St. Louis market and had done so early in August, soon after the events which are the subject of the present prosecution. Their testimony is not contradicted, their credibility is not impeached, and there is no evidence that they have any interest in the case which ought to affect the weight of their testimony. Their testimony corroborates the defendant's, and their interest in the result of the case cannot well be greater than Mrs. Grieser's. The testimony of these three witnesses was uncontradicted, except as it was inconsistent with Mrs. Grieser's opinion. The opinion of the court criticises the testimony of these witnesses because it relates to the market price at St. Louis, 175 miles distant from the place where the hog was stolen, and could shed no light on its value for farrowing purposes *Page 328 on the farm from where it was stolen. It is so well known that we may take judicial notice of the fact, that the price of hogs throughout the territory tributary to any of the great markets like St. Louis and Chicago is based on the price in those markets and that the market price of hogs within 175 or 200 miles of those markets is lower than the price in those markets. Market value is the value which fixes the line between grand and petit larceny — between the felony and the misdemeanor — and the statement applies to Mrs. Grieser's testimony that when a witness offered to testify upon the question of market values says that he can not state what the market values were, he disqualifies himself from testifying. (2 McNeill's Illinois Evidence, 1671, Sec. 12.) The opinion also suggests a distinction between market value and value for farrowing purposes on a farm. Since market value usually furnishes the measure of damages in civil cases as well as the measure of criminal liability in criminal cases it is the value which must be proved. It may be justly claimed that the standard is the value for the highest use for which the article in question is adapted. The proof in this case is in regard to the value in the usual market for hogs. If any other standard is to be adopted proof is required to show it. It is shown that the condition of a piggy sow reduces its value in the market. There is no evidence that it makes her more valuable elsewhere. There is no evidence in regard to the kind, quality or breeding of this sow. She was, so far as the evidence shows, just an ordinary piggy sow, and we cannot take judicial notice that her condition added to her value. That is a question of fact requiring evidence to show it. The legislature has fixed the limit between the less and the greater offense at $15, and the courts and juries should observe it. At the top price of seven seventy-five, the value of the sow at 150 pounds would be $11.62, less the deduction of 40 pounds, $3.10, which would make the value $8.52. If the weight was taken at 200 pounds, as testified to by Mrs. Grieser, the *Page 329 value would be $11.36, and if there was no deduction of 40 pounds for the piggy condition of the sow, the utmost limit of the value under this evidence would be $14.76. The preponderance of the evidence is that the value of the sow was less than $15, and for this reason the judgment should be reversed.
Mr. JUSTICE DEYOUNG concurs in the foregoing dissenting opinion.