Rosenberg, J.J.D.R.C., Temporarily Assigned.
This is an appeal on the transcript pursuant to R. 3:23-8 from a denial of a motion to acquit at the end of the State's case and from a consequent conviction found in a municipal court for larceny of personal property of the price or value of $200 or less committed in violation of N.J.S.A. 2A:170-30.1.
The gravamen of the appeal rests in the absence of proof that the subject matter of the theft was of a specific price or value; that the court erred in holding that proof of some value was sufficient and, further, it could take judicial notice thereof.
The original charge against defendant was predicated upon a larceny in excess of $200 but under $500, in violation of
N.J.S.A. 2A:119-2, and the case proceeded to trial upon waiver of indictment and trial by jury. The evidence produced by the State established that defendant had stolen a tape deck recorder and tool box containing automotive tools. These were described by two witnesses for the State, but no evidence was presented as to their price or value. The defendant did not testify.
Defense counsel moved for a dismissal of the complaint for failure of the State to establish the price or value of the property within the requirements of N.J.S.A. 2A:119-2. The State then moved to amend the complaint to charge a violation of N.J.S.A. 2A:170-30.1. The judge granted the motion pursuant to R. 7:10-2 and thereupon found defendant guilty of violating said statute, holding that a finding of a specific price or value was essential only with respect to the degree of the offense involved in a charge under N.J.S.A. 2A:119-2; that proof of some value was sufficient under N.J.S.A. 2A:170-30.1, and that it would take judicial notice thereof.
At common law simple larceny was constituted of the "felonious taking and carrying away of the personal good of another." Further, at common law simple larceny was subdivided into petit larceny when the goods were of the value of 12 pence or under and grand larceny when the value was above 12 pence. Blackstone's Commentaries (Chase ed. 1924), 963. The gradations as to value were effective in establishing the punishment, grand larceny being punishable by death and petit larceny by imprisonment or whipping. Id. at 971. However, the nature of the offense was the same in both cases, the difference being in the degree of punishment only. Hale, Pleas of the Crown (Wilson ed. 1784), 504.
The statute, N.J.S.A. 2A:119-2, entitled, "Stealing money, chattels and other articles, property and things," has been held to encompass the common law offense.. Gardner v. State, 55 N.J.L. 17 (Sup. Ct. 1892), aff'd 55 N.J.L. 652 (E. & A. 1893). Although not establishing gradations as petit or grand larceny, New Jersey also followed the common
law in establishing the severity of punishment predicated on the price or value of the goods stolen. By virtue of L. 1972, c. 159, § 1, effective September 27, 1972, N.J.S.A. 2A:119-2 was amended to designate larceny in excess of $200 and under $500 a misdemeanor and as a high misdemeanor when the price or value of the property was $500 or over. Section 2 of the same act provided, under N.J.S.A. 2A:170-30.1, that larceny of property of the price or value of $200 or less constituted disorderly conduct.
There are no decisions in this State specifically stating that a finding of "some value" is sufficient for a conviction under N.J.S.A. 2A:170-30.1 and that judicial notice may be taken thereof. However, decisions in sister jurisdictions uniformly hold that this degree of proof is adequate to support a conviction for larceny. In Lanham v. Commonwealth, 250 Ky. 500, 63 S.W. 2d 585 (Ct. App. 1933), the indictment was for the larceny of gasoline "of less value in the aggregate of $20." The conviction by a jury for petit larceny was affirmed, the court holding:
"In cases of grand larceny it is necessary to prove that the value of the property alleged to have been stolen was more than $20, but in cases of petit larceny it is sufficient if the proof shows property taken was of any value less than $20. * * * The courts will take judicial notice ...