People v. Modina

LORIGAN, J.

Defendant was convicted of robbery, and this appeal is from the judgment and the order denying his motion for a new trial.

The information charged the crime of robbery by means of force

and

fear. As defined by the Penal Code (sec. 211), robbery is the “felonious taking of personal property in the possession of another, from his person or immediate presence and against his will, accomplished by means of force

or

fear.’’ And section 212, following, specifies what may constitute fear as an element in robbery. The court instructed the jury relative to what constitutes robbery, by reading to them section 211. It is insisted by appellant that the court should have also read them section 212, defining fear, and the failure to do so is assigned as error.

The court, however, should only give such instructions as are applicable to the evidence in a case. The evidence in the case at bar shows that the robbery charged was committed by means of force. There was no evidence in any way tending to show that the prosecuting witness had been compelled to part with his money through fear. As no element of fear entered into the perpetration of the crime, there was no necessity or propriety in the court instructing the jury on that subject.

[144]

It is next insisted that the court should have instructed the jury that, under the information, the defendant might be convicted of petit larceny.

It is too well settled, however, by the decisions of this court to be open to further discussion, that if a defendant wishes an instruction to be given to the jury of their right to find him guilty, if the evidence warrants, of any lesser crime included in the greater one with which he is charged, it is his duty to ask it. If he fails to do so he cannot complain that it was not given.

(People

v.

Wilson,

135 Cal. 334;