¶1dissenting.
¶2Finding myself unable to unite with my brethren in the reversal of this judgment, and differing so widely from them, I feel constrained to depart from my usual course in such cases, and to state the grounds of my dissent, which briefly are the following:
¶3The reversal, as we see, is placed solely on the ground of the insufficiency of the evidence as to the value of the property in question, that from it the jury were not warranted in affixing to it the value of $35.00, which they did.
¶4As to the sufficiency of evidence, Mr. Greenloaf, in his work on the subject, voh 1, see. 2, says: “By satisfactory evidence, which is sometimes called sufficient evidence, is intended that amount of proof which ordinarily satisfies an unprejudiced mind beyond a reasonable doubt. The circumstances which will amount to this degree of proof can never be previously defined; the only legal test of which they are susceptible is their sufficiency to satisfy the mind and conscience of a common man; and so to convince him that he would venture to act upon that conviction in matters of the hig'hest concern and importance to his own interest. Questions respecting the competency and admissibility of evidence are entirely distinct from those which respect its sufficiency or effect, the former being exclusively within the province of the court, the latter belonging exclusively to the jury.” With this rule in *544view as the one by which this, as well as the trial court, ought to be governed in reviewing the finding of the jury. Let us look to the testimony upon the question of value.
¶5Ulrich Signor, the owner of the stolen articles, which were his own clothing, was called as a witness for the prosecution, and without objection on his direct examination, testified as follows on the point we are now considering. I quote from the record:
¶6Q. Look at that pair of pants and see if you recognize them?
¶7A. Yes, sir; there is a whole suit like those.
¶8Q. What is it worth ?
¶9A. $45.00 for the whole suit.
¶10Q. "Well, what are the pants worth ?••
¶11A. $11.00.
¶12Q. Recognize that coat?
¶13A. Yes, sir;, that is my coat.
¶14Q. "What is the coat worth?
¶15'A. $25.00.
¶16Q. Is it a ready-made coat?
¶17A. It .was made in New York by a tailor.
¶18Q. Is that your vest?
¶19A. Yes, sir.
¶20Q. What is the value of the vest?
¶21A. About $8.00. The whole suit I paid $45.00 for.
¶22Q. Ilere is another vest; do you recognize that ?
¶23A. Yes, sir.
¶24Q. "What is it worth?
¶25A. $5.00.
¶26Q. Do you recognize that coat? (Handing witness another.)
¶27A. Yes, sir.
¶28Q. Whose is it?
¶29A. Mine; it was taken from me.
¶30Q. What is the value of it?
¶32Q. Do you recognize that coat ? (Handing witness another.)
¶33A. Yes, sir; that was mine, and it was taken from me.
¶34Q. What is the value of that?
¶35A. $2.00.
¶36Q. Do you recognize these drawers?
¶37A. Yes, sir, by that spot on them.
¶38Q. What are they worth ?
¶39A. ' $1.00.
¶40Q. Do you recognize these knit drawers ? (Handing witness another pair.)
¶41A. Mine.
¶42Q. What are they worth ?
¶43A, $1.00.
¶44Q. Do you recognize that white vest ?
¶45A. Yes, sir; that is mine.
¶46Q. What is the value of it ?
¶47A. $2.00.
¶48Q. Do you recognize that undershirt ?
¶49A. Yes, sir; it is mine.
¶50Q. What is the value of it ?
¶51A. $2.00.
¶52Q. Do you recognize that shirt?
¶53A. Yes, sir; that is mine and was taken with the rest.
¶54Q. What is the value of it ?
¶55A. $1.50.
¶56Q. Do you recognize that undershirt ? (Handing another.)
¶57A. Yes, sir; that is mine.
¶58Q. What is it worth ?
¶59A. $1.00.
¶60Q. Do you recognize that sack?
¶61A. Yes, sir; it is one of the bags I lost.
¶62*546Q. "What is it worth. ?
¶63A. 25 cents.
¶64Q. What is that worth ? (Showing witness a.razor.)
¶65A. About $2.00.
¶66By this testimony it will be seen that the value put upon the property is nearly twice that which the jury actually returned. But this is not all. A witness named Pierce was called on behalf of the state, who swore that he had been employed in the capacity of clerk in a general merchandise store, and knew the value of clothing. His competency to estimate the value was also unquestioned, and, omitting the razor and some other of the smaller articles, his valuation in the aggregate was considerably over fifty dollars. This evidence seems to be entirely disregarded by the majority of the court in their opinion, although no objection was made to its admission at the trial, or afterwards in the motion for a new trial. Disregarding it entirely, they seem to put implicit confidence in the two witnesses called in defense, who, without the least reason as I think, and as the jury, who had the articles in question before them for inspection,probably thought, placed the value at less than $35.00.
¶67Such being the testimony, I am of the opinion that the granting of a new trial, on the ground selected by my brethren, is a clear usurpation of the province of the jury and, as Í believe, unsupported by any decision that can be found in the books.
¶68Eor these reasons I am of the opinion that the conviction was right, and a new trial should be denied.