CAIN v. STATE, 56 Ala. App. 505 (1975)

323 So.2d 390

7 Div. 337.Court of Criminal Appeals of Alabama.
October 1, 1975. Rehearing Denied October 28, 1975.

Appeal from the Circuit Court, Etowah County, George Murphy, J.

Hubert L. Taylor, Rowan S. Bone, Gadsden, for appellant.

Page 506

On the charge of buying, receiving, or concealing stolen property, the burden is on the State to prove the value of the alleged property stolen, and failure to prove said value is reversible error, Lang v. State, 23 Ala. App. 596, 129 So. 312, (1930); Middleton v. State, 27 Ala. App. 564, 175 So. 613
(1937); King v. State, 46 Ala. App. 493, 243 So.2d 766 (1971) Padgett v. State, 44 Ala. App. 548, 216 So.2d 187 (1968).

William J. Baxley, Atty. Gen., and Kermit M. Downs, Asst. Atty. Gen., for the State.

In a prosecution for buying and receiving stolen property, the question of the value of the property is left to the jury King v. State, 194 Ark. 157, 106 S.W.2d 582; Thompson v. State, 184 Md. 555, 42 A.2d 113; Asner v. State, 138 Tex.Cr. 420, 136 S.W.2d 822; State v. Grijalva, 8 Ariz. App. 205, 445 P.2d 88 Swearington v. State, 251 Ark. 747, 474 S.W.2d 111; Thomas v. State, 2 Md. App. 645, 236 A.2d 747; Heyroth v. State, 275 Wis. 104, 81 N.W.2d 56.

CATES, Presiding Judge.

Cain appeals from a conviction of receiving a stolen lawn mower. The trial judge sentenced him to eight years in the penitentiary. Code 1940, T. 14, § 338.

An admitted thief testified that he stole the lawn mower by taking it from the owner’s front porch. He then took it to Cain who paid for it with two dollars cash and twenty amphetamine pills. The State brought in other evidence to corroborate this testimony.

On appeal defense counsel argues that the value of the machine, alleged in the indictment to be $50.00, was not established. Value in our larceny and related statutes is an ingredient (1) to show that the property is a subject of larceny[1] and (2) to fix the punishment where a differentiation must be made in price to mark the line between grand and petty larceny, ordinarily twenty-five dollars.

Here the indictment charged the lawn mower was worth fifty dollars. The jury’s verdict found Cain guilty as charged in the indictment — a finding which adopted the averred value. Se Middleton v. State, 27 Ala. App. 564, 176 So. 613.

The oral charge did not mention value. Defense counsel took no exception to the trial judge’s general charge nor did he tender any written requested charges. Hence, the oral charge became the law of the case, binding on the jury in their deliberations. Smith v. State, 53 Ala. App. 657, 303 So.2d 157 Felton v. State, 46 Ala. App. 579, 246 So.2d 467; and Dodd v. State, 251 Ala. 130, 36 So.2d 474.

Under Code 1940, T. 14, § 336 where, as was the case here, the stolen property has been returned to the owner, the jury does not need to assess its value. Glover v. State, 23 Ala. App. 81, 121 So. 2.

The owner of the lawn mower on direct examination valued the lawn mower at $50.00. That on cross he wavered only made the weight of his evidence a jury question. He was a competent witness.[2]

The judgment below is

Affirmed.

All the Judges concur.

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