PEOPLE v. WELSH

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District Court of Appeal, Second District, Division 2, California.

PEOPLE v. WELSH.*

Cr. 2832.

Decided: February 19, 1936

Clair V. Eberhard, of Los Angeles, for appellant. U. S. Webb, Atty. Gen., and Bayard Rhone, Deputy Atty. Gen., for the People.

Four nocturnal forays in the course of which, the prosecution charged, he robbed and molested four different women, brought defendant before a jury upon eight felony counts. Upon trial he was convicted upon six counts, four for robbery, one for attempted rape, and one for kidnaping for the purpose of robbery, and was acquitted upon two counts of attempted kidnaping for the purpose of robbery. From the conviction and from an order denying a motion for new trial, defendant appeals.

While the court correctly instructed the jury upon the crime of robbery, appellant complains that it refused a requested instruction upon the lesser and included offense of larceny. Such requested instruction read as follows: “Thus, if property be taken by stealth through a larceny and the owner, in his endeavor to regain his property, is deterred therefrom and resisted by force or fear, the crime is merely larceny. The force used must be more than required to consummate a mere larceny of property taken. Thus, snatching property from the hand of another would be larceny and not robbery.”

Portions of the requested instruction may be objectionable as being not a correct statement of the law, but the requested charge sufficiently indicated appellant's desire that the court instruct upon the lesser and included offense of larceny. Refusal to so instruct, appellant claims, was prejudicial, because the jury might well have found from the evidence that the offenses committed constituted larceny rather than robbery. We agree with appellant's contention in this regard, that the refusal to instruct upon the lesser and included offense of larceny was error. As stated in People v. Church, 116 Cal. 300, 48 P. 125, 126: “Again, in every trial upon a charge of robbery, where the evidence justifies it, the court should of its own motion, in the absence of request upon the part of counsel, inform the jury that larceny is included in the offense of robbery, and that their verdict may be framed upon those lines. While this court has refused to set aside verdicts by reason of the trial court's failure to so instruct, holding that the defendant has no cause of complaint where he sits idly by without request upon his part to give the instruction, still, the better practice, and the only strictly correct practice, is for the court to inform the jury of all offenses which are necessarily included in the principal offense charged.”

Appellant also urges that the evidence is insufficient to convict upon any ground. Perusal of the record discloses ample evidence to justify the verdict as to the count of attempted rape and the count of kidnaping for the purpose of robbery.

The judgment and order are reversed upon the four counts of robbery, Nos. II, IV, VI, and VIII, and are affirmed as to count I kidnaping for the purpose of robbery, and count III, attempted rape.

I concur as to counts II, III, IV, VI, and VIII, and dissent as to count I, in which defendant is accused of kidnaping Agnes M. Wyatt for the purpose of robbery. By section 209 of the Penal Code kidnaping for the purpose of robbery is made a felony but kidnaping for the purpose of larceny is not mentioned in the section. We are reversing the conviction as to count II for the reason that the trial court erred in refusing an instruction defining larceny. Since the refused instruction should have been given on the issue of count II, it should also have been given on the issue of count I, in order to enable the jury to determine if the defendant kidnaped the complaining witness for the purpose of robbery or for some other purpose. The complaining witness testified that she had been forced into an automobile; that defendant later, while sitting in the automobile parked by the curb, offered to pay her for sexual relations; that she had a purse containing a compact, handkerchief, a package of cigarettes and some money; that defendant took her purse, opened it, took out the cigarettes, began smoking them and returned the purse with the other contents. The defendant testified that the prosecutrix entered his car voluntarily and that he did not take her purse or cigarettes. Under these circumstances it was error to refuse the offered instruction. People v. Church, supra.

I concur in those parts of Judge GOULD'S opinion which support the judgment. I dissent from all parts of either opinion which seek to reverse the judgment, for I am in favor of affirming the judgment on all counts.

The majority are reversing the conviction as to the four counts of robbery for the reason that the trial court erred in refusing an instruction defining larceny; but in my opinion the court did not refuse an instruction defining larceny. The sentences which are quoted in the opinion and which the court refused to give were merely the tailend of an instruction which defines robbery; and it may not be reasonably said that because the word “larceny” is used therein it is an instruction defining larceny. On the contrary, the defendant in his brief admits over and over again that he made no request for an instruction on larceny. The part of the instruction which was refused contains bad law and should not have been given. To say that snatching property from the hand of another would be larceny and not robbery is not good law, for it would depend upon all the facts and circumstances in evidence bearing upon the question of the force or fear used whether or not it would be larceny or robbery.

It is the settled law of California that a failure of the court to charge a jury respecting the law of lesser offenses included in the offense charged will not constitute reversible error in the absence of a request for such an instruction. See cases collected in 8 Cal.Jur. 311, note 6; 22 Cal.Jur. 886. While the authorities relied upon by the defendant say that it is the “better practice and the only strictly correct practice” to instruct on the included lesser offenses, they do not hold that a failure to do so constitutes reversible error. On the contrary, they hold that such an omission is favorable error, for the reason that it will not be presumed that the jury would convict of the higher offense merely because not permitted to convict of the lesser, the natural presumption being that the jury will do its duty and acquit the defendant if not satisfied of defendant's guilt of the higher offense. 8 Cal.Jur. 376, note 10.

GOULD, Justice pro tem.

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