People v. Welsh

THOMPSON, J.

In an information filed by the district attorney of Los Angeles County, defendant and appellant was charged in counts I to VIII with the following crimes: Kidnaping for the purpose of robbery; robbery; attempted rape; robbery; attempted kidnaping for the purpose of robbery; and robbery, respectively. After a plea of not guilty was regularly entered, the appellant was tried before a jury which returned verdicts of not guilty as to the counts charging attempted kidnaping, and guilty upon all of the remaining counts. This appeal is prosecuted from the judgments of conviction and the order denying a motion for new trial. The appellant attacks the sufficiency of the evidence as to counts I and III, the modification of an instruction by the trial court, and the failure to instruct the jury on a lesser degree of crime.

We shall first dispose of the appeal in so far as it relates to counts IV, VI and VIII, all of which charged robbery. The contention of appellant with respect to these counts is, in effect, that the court failed to instruct the jury upon the lesser and included offense of larceny and that while he did not in words request such an instruction yet his desire in that particular was evidenced by an instruction which he requested, as follows:

“You are instructed that robbery is the felonious taking of personal property' in the immediate possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. The force or fear herein mentioned however, must be in the taking. Thus if property be taken by stealth through a larceny and the owner, in his endeavor to regain his property, is deterred therefrom or 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.

[211]

Thus, snatching property from the hand of another would be larceny and not robbery.”

The court modified the requested instruction by striking therefrom everything commencing with the words “Thus if property be taken.” We find nothing in the instruction requested by appellant to indicate a request on his part or a desire to have the jury instructed upon the lesser and included offense. It was no more than an attempt to improperly limit the offense of robbery. We are therefore left in the position where the contention amomits to nothing more than the assertion that a failure to instruct upon the lesser and included offense without a request for such an instruction constitutes reversible error. We might be inclined to give greater consideration to the argument from a purely practical viewpoint if it were an open question in this state. However, such consideration is foreclosed by a long list of authorities from which we cite the following: