The Court erred in refusing to give the seventeenth instruction, which was to the effect that under the indictment for robbery the jury might find the defendant guilty of a larceny, if they entertained a reasonable doubt as to which of the two offenses he was guilty.
Robbery is larceny committed by violence from the person of one put in fear. “ The indictment for robbery charges a larceny, together with the aggravating matter which makes it in the particular instance robbery.” (2 Bish. Cr. L. 1158.) In the Penal Code,, sec. 484, larceny is defined: “ The * * felonious * * taking * * the property of another.” And sec. 211 of the same Code declares: “ 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.”
It is obvious from the foregoing definitions that an indictment for robbery must aver every fact necessary to constitute larceny, and more.
The jury may find a defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment. (Penal Code, 1159.) And as there was some evidence tending to show that the crime was merely larceny, the defendant had the right to insist on the instruction he requested the Court to give.
Judgment and order denying new trial reversed, and cause remanded for a new trial.