My concurrence goes to the result. I do not think the trial court should have submitted the included offense of larceny, of which crime defendant was convicted. The rule is that where, under the evidence, *Page 751 the defendant is clearly guilty of the crime charged, or not guilty, then other offenses should not be submitted. State v. Sterrett, 80 Iowa 609, 45 N.W. 401; State v. Marshall, 206 Iowa 373,220 N.W. 106 (cited in the majority opinion), where a number of cases are cited at page 377 of 206 Iowa, page 107 of 220 N.W., supporting the rule that:
"* * * even under the charge, if there is no evidence from which the jury could find the defendant guilty of the included offense, then such included offense need not be submitted."
In the last-cited case the offense of larceny was submitted under the indictment for larceny from the person because there was evidence that the watch, which was the subject of the larceny, might have fallen from the owner's pocket in a scuffle. The test applied was: "* * * whether or not there is any evidence in the case under which it could be said that the jury could have found the defendant guilty of larceny, instead of larceny from the person."
It is true that the rule is usually stated that the included offense "need" not be submitted if the evidence shows that defendant is clearly guilty of the crime charged or not guilty. This is probably because as a rule no error results upon which defendant can secure a reversal. State v. Haugh, 156 Iowa 639,137 N.W. 917; State v. Barkley, 129 Iowa 484, 105 N.W. 506; State v. Shepherd, 129 Iowa 705, 106 N.W. 190; State v. Dimmitt,184 Iowa 870, 169 N.W. 137. But in any trial there should be no instruction upon a theory that has no support in the evidence. Larceny is not a degree of the crime of larceny from a person. They are both distinct crimes. One can argue that the crime of larceny from a person cannot be committed unless the crime of larceny is committed and therefore the latter should be submitted. But the argument would be equally forceful that where the evidence shows only that the crime of larceny from a person was committed, and the jury fails to convict of that crime, then the defendant could not have been guilty of larceny.
The trouble with instructions of included offenses when the evidence shows only the commission of the offense charged is that they allow the jury to deal leniently with the defendant. This is not the prerogative of a jury. Here the jury must have *Page 752 believed the defendant guilty of the crime of larceny from a person. That was the only crime established by the evidence. Yet the jury returns a verdict of guilty of larceny.
I think there should have been no instruction upon the included offense. I feel that the jury verdict exhibits clemency rather than judgment. Of this the defendant cannot complain, but I think the practice of submitting included offenses under such a record should be condemned in our opinions.