¶2The court’s opinion asserts that its holding does no violence to Burrows v. State (1894), 137 Ind. 474, 37 N.E. 271, and its progeny, including Baker v. State (1928), 200 Ind. 336, 163 N.E. 268. I believe it does. I would reverse.
¶3The facts in Burrowsare scattered throughout the opinion and much of the evidence seems to have been omitted. However, it appears there was prima facie proof that R. L. Piser wrote a check in the State of New York on a New York bank payable to the order of Arthur LeRoy Piser in the sum of Fifty Dollars and mailed it to the payee in Crawfordsville, Indiana, where Burrows apparently stole it before it reached the payee. Burrows’ conviction of larceny was reversed because the court gave an instruction stating: “ ‘A check drawn on a bank, when the drawer has money on deposit, as much or more than sufficient to pay the check, is presumptively of some value in the hands of the person in whose favor it is drawn.’ ” (137 Ind. at 475.)
¶4What the Burrowsevidence, if any, was with respect to the value of the check, the opinion does not state. However, the court noted that “the bank on which the check was made payable, being located in the State of New York, the maker could have availed himself of the right to order the bank not to pay it, or withdrawn the money on deposit before it could have been presented for payment.” (Ibid, at 477.) Also:
“On the trial of the cause it became a material question whether the check in controversy, payable to order, out of the possession of the payee, and without his endorsement thereon, was of any value. The instruction in review, in effect, told the jury to ignore the testimony of the- witnesses as to value, for the reason already indicated, that a value was to be presumed.” (Ibid, at 478.)
¶5Of course, the Burrowscourt did not say whether there was sufficient evidence of value to have sustained the verdict of guilty had the trial court not given the erroneous instruction, but the implication is clear that because the check’s *474maker could have stopped payment the jury could have found the check to be worthless. At bar, however, the undisputed evidence is that payment had been stopped — that the check could not be cashed. If it was not proper for the Burrowsjury to presume that the check in that case had “some value”, regardless of the evidence, it was equally improper for the jury in this case to find on no evidence except the sum written on the check that it had a value of more than $100.00.
¶6In Baker v. State (1928), supra, 200 Ind. 336, 163 N.E. 268, a petit larceny conviction for the theft of six chickens was reversed for failure to prove ownership and, on authority of Burrows, for failure to prove that the six chickens had any value. I agree with Judge Martin who wrote the court’s opinion but would have preferred to adopt the rule that “the jury may infer value where the nature of the property is such as to justify such an inference.” (200 Ind. at 337.) (Our emphasis.) I believe that in most instances of theft of tangible property it would be reasonable for the trier of fact to infer some value merely from the nature of the property, especially if the property is exhibited in evidence. But intangible property is not susceptible of reliable evaluation on mere inspection since it has no inherent value. It is but a token which signifies that it may be exchanged for something of value if it is in fact what it purports to be. But a check on which payment has been stopped is not what it purports to be. And when that fact is in evidence, and uncontradicted, how can the trier of fact find the check to have a value of $100.00 or more, merely because on its face it purports to be negotiable for $400.00? How, in fact, can it be found to have any value?
¶7To return to Burrows, supra,137 Ind. at 476, the court also said:
“The enactment of laws in Iowa and Missouri, fixing prima facie the value of these choses in action, is a controlling argument in favor of the necessity of such a law, and equally as potent a reason, in the absence of it, that the value of this class of instruments is a question alone *475for the consideration of the jury trying the cause. Courts can not, during the progress of a trial, supply by instruction what they may deem to be necessary legislative enactments.”
¶8As the court’s opinion at bar acknowledges, Indiana does not yet have a statute setting a standard by which the value of a stolen check may be measured. Nevertheless the majority holds that the amount written on the face of a bearer instrument is evidence of its value because it would be “inattentive to established commercial principles” not to do so.
¶9Had the prosecutor charged the defendant under the appropriate statute it would have been unnecessary to ascribe a questionable value to the check in order to send him to prison for one to ten years. Ind. Ann. Stat. § 35-17-5-14 (Burns Code Ed., 1975) provides that “a person commits a crime when he knowingly demands by threat control over property of the owner ... or threatens a person with intent thereby to obtain or exert control over property of the owner. . . .” The penalty is the same as that for theft of $100 or more. Appellant committed the crime proscribed by § 35-17-5-14 when he aided his accomplice in attempting to collect the sum his accomplice had demanded of Mrs. Crowder on threat of death. To prove that crime, had it been charged, it would have been unnecessary to prove that appellant or his accomplice obtained anything of value.
¶10The prosecutor’s failure to bring the proper charge should not cast upon us the burden of saving his case by presuming a *476•fictitious value for the bundle of scrap paper used to catch the would-be extortionists. A similar mistake was made by the prosecutor in Craft v. State (1964), 246 Ind. 49, 202 N.E.2d 570, a prosecution for vehicle taking under a vehicle taking statute (Ind. Acts 1927, Ch. 201, § 4), which required proof that the vehicle had a value of $50.00 or more, even though there was another vehicle taking statute (Ind. Acts 1941, Ch. 148, § 8) which required no proof of value. Failure to prove value in that case resulted in reversal, as it should in this case.
¶11I would reverse and remand with instructions to discharge appellant.
¶12Note. — Reported at 364 N.E.2d 149.
¶13. The court’s opinion gives the impression that it is a matter of common knowledge of which we may take judicial notice that “[tjhose who deal in negotiable instruments rely upon the apparent liabilities created upon the face of such instruments”. Many people who have unsuccessfully tried to obtain money or merchandise with checks in establishments where they are not known and cannot produce satisfactory proof of the check’s value may have a different idea.