People v. Stofer

CHIPMAN, P. J.

Defendant was accused of the crime of grand larceny in that he did, on August 23, 1905, wrongfully and feloniously “steal, take and carry away from the person and immediate possession of John Coleman twenty dollars in gold coin . . . and fifty cents in silver money,” the personal property of the said Coleman. The jury found the defendant guilty of grand larceny, and the court adjudged that the defendant be imprisoned for the term of ten years.

Defendant appeals from the judgment and the order denying his motion for a new trial.

Defendant was refused an instruction, the purpose of which was to inform the jury that the stealing of money less in value than fifty dollars would not constitute grand larceny unless it was taken from the person of another, and further to inform the jury of the two degrees in larceny, and that although guilty of stealing the money, the jury should have been given the opportunity under proper instructions to determine whether the crime was grand or petit larceny.

The court instructed the jury as follows: “There are but one of two verdicts that you can find in this case. . . . They will be ‘guilty of grand larceny,’ or ‘guilty as charged’; and ‘not guilty.’ There is no lesser crime in it; it is either ‘guilty,’ or ‘not guilty.’ The taking of money from the person of another, as I have read to you in the statute, is grand larceny; it makes no difference whether the amount be great or small.”

[418]

The instruction given by the court removed from the jury all consideration of the lesser offense of petit larceny, and not only assumed as proven the important fact that the money was taken from the person of Coleman, but that there was no evidence from which the jury might have reasonably drawn the inference that the money was not so taken.

Respondent cites cases where the supreme court has held that in a prosecution for murder, the refusal of the court to instruct the jury that they may return a verdict of manslaughter is not error, if the evidence clearly shows that the jury would not have been warranted in rendering a verdict of manslaughter, and where the appellate court was able to say from an examination of the evidence that the crime of manslaughter was not involved.