The opinion of the court was delivered by
Dunbar, J.The appellant was convicted by the superior court of Columbia county of the crime of stealing one or .more head of neat cattle, and sentenced to the penitentiary for a term of ten years. From such judgment of sentence an appeal was taken to this court.
The information is under § 52 of the penal code of Washington, which provides that if any person shall steal certain animals, naming them, of any value, he shall be deemed guilty of an offense against the laws of the State of Washington, and upon conviction thereof shall be imprisoned in the penitentiary and *585kept at hard labor not more than ten nor less than one year; or, in the discretion of the court, the offender may be imprisoned in the county jail not exceeding one year, or fined not exceeding one hundred dollars, or both.
The information in the case at bar is as follows:
“ G. S. Young is accused by the prosecuting attorney of Columbia county, State of Washington, by this information, of the crime of stealing one or more head of neat cattle, committed as follows, to-wit: The said G. S. Young on the 1st day of August, A. D., 1894, within the county of Columbia, State of Washington, did then and there, unlawfully and feloniously steal one head of neat cattle, the property of Richard Walsh. Contrary to the form of the statute in such cases made and provided, etc.” .
The alleged objection to this information is that it does not state the value of the cattle alleged to have been stolen. It is stoutly contended by the appellant that a lack of the allegation of the value renders the indictment bad, and it is urged that without value, there can be no larceny, unless made so expressly by statute. We think this is true, and no doubt, the old rule of the common law required the allegation of value, but there was a reason for the rule, and that was that the value determined the punishment and the grade of the crime, and when the reason for the rule no longer exists, the rule itself will not he binding. Under our statute it makes no difference what the value of the animal stolen' is. The statute has made the stealing of cattle a distinct offense and the defendant could as well be sentenced to a term in the penitentiary for stealing one animal as he could for stealing a hundred, nor could he receive any benefit by an allegation of value, nor would it avail him anything to contest the value alleged, if it were alleged, and prove that *586the value was less than the value alleged. If the value were alleged at one dollar, and the proof was that the actual value was a thousand dollars, or if the value was alleged at a thousand dollars and the proof was that the actual value was one dollar, the punishment would still be the same, for the crime is the stealing of cattle of any value. It is true that in the discretion of the court the offender may be imprisoned in the penitentiary or in the county jail, or he may be fined, but it is not at all likely that it was the intention of the legislature to have that discretion exercised with reference to the value or the number of the cattle stolen, but with reference to the circumstances surrounding the commission of the crime. This crime is by the statute directly taken out of the provisions of the law with reference to grand and petit larceny, and is made a separate and distinct offense, and the language of the statute is that if he shall steal, take or drive away these cattle of any value, he shall be deemed guilty of an offense. We think the idea intended to be expressed by the legislature was “ without reference to value,” nor do we think that ¿ny distinction can be made between our statute and the statute of-Montana, which declares a theft of certain animals, “ whatever their value,” to be grand larceny. The two expressions “of any value” and “whatever their value,” evidently mean practically the same thing, the legislature, resting on the presumption that cattle are of some value, and that when they are stolen, the party stealing them should be punished without reference to any particular value of the cattle. This statute was construed by the supreme court of Montana in Territory v. Pendry, 9 Mont. 67 (22 Pac. 761), where the court held that it was unnecessary to allege or prove any particular value for stolen animals, that the value *587might he inferred from any facts or circumstances that might be proven in the absence of any direct evidence upon that point. In fact, such is now the almost universal holding of the courts under statutes similar to ours, and this principle is well recognized by all the writers of criminal law.
Archbold, in his work on Criminal Practice and Pleadings (vol. 2, pp. 363, 364), says:
“ Formerly, the stealing of goods, etc., of the value of twelve pence, or under, was only petty larceny; above that value was deemed grand larceny; and in the indictment, therefore, it was necessary and material to show the value of the articles stolen; and the value of each article alleged to be stolen was stated, that, in case the jury should find the defendant guilty of stealing one of them only, the offense might appear upon the record to be grand larceny. Bat the distinction between grand and petty larceny was abolished by stat. 7 & 8 G. IV,. c. 29, § 2; since which, it does not appear to have been necessary to state or prove the value of the article stolen,”
referring by note,to the indictment on page 357, where it was held that no indictipent should, be held insufficient for want of the statement of value in any case where the value or price.is not of- the essence of the offense; adding that since the distinction between grand and petit larceny was abolished by stat. 7 & 8 G. IV, c. 29, § 2, it seems to have been no longer necessary to insert the value of the article stolen.
Bishop on Statutory Crimes (2d ed.), §427, says:
“A rule pervading the entire procedure in larceny, is, that the value of. the thing stolen must be alleged and proved when the punishment or its degree depends on value; but, when it does not, it need not be.”
1 Bishop on Criminal Procedure (3d ed.), §541, after discussing the general rule, says:
*588“But, as we have seen, the proof of value will be adequate if it simply shows to which of the two or more classes, meriting corresponding punishments, the offense belongs. And if the statute makes it a distinct offense to steal a horse, or any other specified article, irrespective of its value, . . . the value need not be alleged in the indictment; but it must be alleged wherever it is an element in the punishment.”
And again, in § 567:
“We have seen that, in many cases, the punishment depends on value, therefore in the'se cases it must be alleged. But for purposes of identity it is not generally required, though in special circumstances it may be. When not affecting the punishment, or the identity of the transaction, the indictment may be silent concerning it.”
And that is now the universal rule, founded in good sense. As we have seen under our statute, the value could in no possible way affect the punishment, and it was therefore unnecessary to aver it.
It is contended by the appellant that the record in this case does not show that the defendant was present during the trial, and does not show that he consented to the separation of the jury, nor that he was present at the time the court gave additional instructions to the jury, nor that he was present when the verdict was rendered. The record does show, however, that these questions were not brought to the attention of the lower court on the motion for a new trial, and in accordance with the universal and oft expressed opinion of this, court, the appellant will not be allowed to raise them here for the first time. We think the instructions complained of were substantially correct.
The following, which is claimed by appellant to be a reversible error, appears in the record:
“The jury being empaneled, and the prosecuting *589and county attorney, Mr. Wlil H. Fouts, Esq., while addressing the jury on the testimony introduced on the trial was permitted by the court over the objection of the defendant, to explain to the jury the reason that he did not go on the witness stand in this case and testify to a conversation held by himself and defendant in his office prior to beginning of this trial.”
This seems rather a strange proceeding, and, if there was enough in the record which was brought up here to show to the court that this statement was made in the first instance by the prosecuting attorney, and that there had been nothing preceding to call it forth, we should, be constrained to hold that it was a reversible error, but the record does not disclose what reason was advanced by the attorney, or under what circumstances he tendered this explanation. If in reply to a criticism by the counsel for the defense concerning this lack of testimony on the part of the attorney, it might have been legitimate for him to have replied to it by stating that he was not a competent witness, or for many other reasons which we might conjecture; but we are unable to say from this fragmentary record that the rights of the defendant were in anyway jeopardized by the statement set forth in the record, and therefore do not feel justified in reversing the case for this alleged error.
Finding no substantial errors in the record, the judgment will be affirmed.
Hoyt, C. J., and Scott, J.; concur.