(dissenting) — I respectfully dissent.
I. In Division I of the .majority opinion it is held the trial court was right in submitting larceny from the person as an in-*1171eluded offense. Since the defendant was charged with, and the court submitted, robbery with aggravation, I feel the trial court would be right in submitting larceny from the person as an included offense were it not for what I will later discuss. But in this connection I wish to state that I do not subscribe to a rule that it would not be error under a robbery indictment to submit larceny from the person if the charge or proof was merely robbery without aggravation. To so hold would mean the included offense, larceny from the person, carrying a fifteen-year penitentiary sentence, would be greater than robbery without aggravation, carrying a ten-year penitentiary sentence. I merely mention this for there are expressions in our past opinions which might lead one to believe larceny from the person is always an included offense and should be submitted in all trials for robbery. See State v. Graff, 66 Iowa 482, 24 N.W. 6; State v. Mikesell, 70 Iowa 176, 30 N.W. 474; State v. Reasby, 100 Iowa 231, 69 N.W. 451; State v. Wasson, 126 Iowa 320, 101 N.W. 1125; State v. Taylor, 140 Iowa 470, 118 N.W. 747; State v. Schell, 172 Iowa 127, 153 N.W. 62; State v. Warneke, 219 Iowa 1239, 260 N.W. 667. Then too in this case, in submitting the included offenses, the trial court’s order of submission by numbered special verdict forms was: (1) robbery with aggravation (2) robbery without aggravation (3) larceny from the person, and so on. I feel the trial court should have submitted larceny from the person second and ahead of robbery without aggravation for under the statutes it is a higher offense. I feel certain the order of submission gave the jury the impression that larceny from the person was a lesser offense than robbery without aggravation. While I feel larceny from the person can be submitted in a proper case of robbery with aggravation, I would like to see our opinion in this case state, even by way of dictum, that it cannot be submitted in a case of robbery without aggravation. I do not think on a proper analysis of our former opinions it will be found we have ever held this, though some of the statements in the opinions would seem to indicate such a conclusion. Such a statement in our opinion in this case might forestall error in future cases.
The statements in State v. Taylor, 140 Iowa 470, 118 N.W. 747, and State v. Schell, 172 Iowa 127, 153 N.W. 62, cited in this division of the majority opinion, to the effect that larceny from a *1172person is an- included offense in a robbery trial are based on the holding in State v. Graff, 66 Iowa 482, 24 N.W. 6, where defendant was indicted for and.convicted of larceny from the person. My point is that even though every robbery involves a larceny from the person, still the statutory penalty for larceny from the person (fifteen years) forbids its inclusion in a robbery without aggravatiqn (ten years) case. An included offense must bé a lesser offense than the one charged in the indictment.
II. In Division III of the majority opinion it is held larceny from the person can be larceny of property “in the possession and immediate presence — in the immediate charge and custody — of the prosecutrix.” The general rule is that larceny from the person contemplates larceny of property actually upon or attached to the person.
In People v. DeVaughn, 63 Cal. App. 513, 515, 218 P. 1020, 1021, it is held: “In order that grand larceny may be committed in the taking of property from the person of another, there must be evidence to support the conclusion that at the time the property was taken it was actually upon or attached to the person, by his clothing or otherwise, or that it was in some manner in his actual physical possession.”
The case is much like Wilder v. State, 30 Ala. App. 107, 108, 1 So.2d 317, where defendant was convicted of larceny from the person and the facts were that a theater patron “grabbed” a lady’s purse from the adjoining empty seat where she had placed it, and hurried out of the building. In holding that under this evidence the defendant could not “as a matter of law” be guilty of larceny from the person the court states its conclusion — that the-taking must be from actual physical possession to support conviction — is “supported by the overwhelming weight of authority.” The opinion quotes with approval the rule of an early California case (People v. McElroy, 116 Cal. 583, 586, 48 P. 718, 719) : “ ‘that it [larceny from the person] was not intended to include property removed from the person and laid aside, however immediately it may be retained in the presence or constructive control or possession of the owner while so laid away from his person and out of his hands.’ ”
See also People v. Crenshaw, 63 Cal. App. 2d 395, 146 P.2d 690.
*1173In Harris and Wilshere’s Criminal Law, Seventeenth. Ed. (1943) page 320, it is stated that in “Larceny from the person * * * (b) the goods must actually be taken from the person, not, e.g., from clothes which the prosecutor has taken off * * * the goods must be actually severed from the person * *
In Rapalje’s Larceny and Kindred Offenses, section 16, it is stated: “To constitute this offense (larceny from the person) the theft must be from the person, and not merely in the presence of the dispossessed party.”
The majority opinion, like the opinion in Banks v. State, 74 Ga. App. 449, 40 S.E.2d 103 (cited in the majority opinion), rests the conclusion on the authority of the robbery cases. It is true the phrase is about the same in both statutes.
In section 711.1, Code, 1950, robbery is defined: “If any person, with force or violence, or by putting in fear, steal and take from the person of another * *
In section 709.6, the provision is that if a person “commit the crime of larceny '* * * by stealing from the person of another, he shall be imprisoned in the penitentiary” for fifteen years.
But there is this difference in the two statutes: Section 711.1 is a statute of definition and section 709.6 is 'a statute of classification. The latter only, increases the punishment for the thief when his larceny is “from the person.” The words “from the person” used in defining robbery had, at common law, the meaning of a taking from personal presence by violence or putting in' fear. It will be presumed the legislature in defining robbery intended the same inclusions that the phrase “from the person” carried at common law.
In O’Donnell v. People, 224 Ill. 218, 226, 79 N.E. 639, 642, 8 Ann. Cas. 123, it is stated:
“It is a familiar rule of construction that, when a statute uses words which have a definite and well-known meaning at common law it will be presumed that the terms are used in the sense in which they were understood at common law, and will be so construed unless it clearly' appears that it was not so intended. 2 Sutherland on Stat. Const., sec. 398; Kirchoff v. Union Mutual Life Ins. Co., 128 Ill. 199, 20 N.E. 808; Meadowcroft v. Winnebago County, 181 Ill. 504, 54 N.E. 949. It will never be presumed *1174that the legislature intended to make an innovation upon the common law further than the necessity of the case required, and the best rule of construction is to construe a statute as close to the reason of the common law as may be consistent with the terms employed. The words ‘from the person of another,’ found in our statutory definition of robbery, must be held to have been used in the same sense and with the same meaning that these terms had acquired at common law at the time the statute was enacted, and the offense of robbery, under our statute, may be committed by violence or putting in fear, and feloniously taking money or other' thing of value from the person or in the presence and under the immediate control and possession of the person assaulted. There is nothing in our statute that shows that the term ‘from the person’ was used in the restricted and popular sense contended for by plaintiff in error.”
But the same cannot be said of larceny from the person. While robbery is an offense against the person, larceny is an offense against possession. 52 C. J. S., Larceny, section 1. The legislature first provides for punishment for larceny, based on the value of the .property stolen, and then classifies some larcenies for increased punishment. Thus larcenies in the daytime and larcenies in the nighttime and larcenies in dwelling houses, stores, buildings, boats, motor vehicles, etc. receive different increased penalties. And larceny from a building on fire or “from the person of another” receives the highest increased penalty of all — ■ fifteen years in the penitentiary without regard to the value of the property stolen. Surely the word “from” has the same meaning in the two phrases in section 709.6: “from any building on fire * * * or * * * from the person of another.” It means the property must be in the building or on the person. This section, like all criminal statutes that enhance the punishment, must be strictly construed. It can increase the penalty for a thief who steals property of trivial value from a hundred-dollar fine to fifteen years in the penitentiary.
I do not feel the robbery cases support the conclusion that a lareeny-from-the-person classification is established by proof, which shows the property was not on the person of another. That is the basis on which the conclusion of the majority rests. The *1175Georgia case, Banks v. State, supra, stands alone and upon the same reasoning: the robbery cases.
Here the jury convicted the-defendant-of larceny, admittedly of $27 and the evidence sustains such conviction. But I do not feel the evidence sustains the conviction of larceny from the person. Only part of the verdict is not sustained by the evidence and that part only goes to the sentence or punishment.
In the recent case of State v. Barlow, 242 Iowa 714, 46 N.W.2d 725, where that part of a verdict finding defendant had twice before been convicted of driving while intoxicated was not sustained by the evidence — as to one prior conviction — we held that the error did not demand a reversal and the cause could be remanded for the appropriate sentence upon the verdict of guilty of the principal crime and one prior conviction.
In 24 C. J. S., Criminal Law, section 1579b, it is stated:
“Where the court is of the opinion that the evidence does not warrant the verdict of guilty of the offense charged in the indictment, but that it is sufficient to support a conviction for a lesser offense necessarily included in the indictment and verdict, it has power to impose sentence for the lesser offense; and under an indictment including a lesser in the greater offense charged, a verdict of guilty includes the lesser offense so that a sentence appropriate to the lesser offense is not repugnant to the charge or to the verdict.”
In State v. Fields, 70 Iowa 196, 198, 30 N.W. 480, 481; where the defendant was convicted of murder in the first degree and on appeal we felt the evidence was insufficient to establish a deliberate murder, we, “at the suggestion of defendant’s counsel, and with the consent of the attorney general * # * concluded to reduce the sentence to the maximum punishment authorized for the crime of manslaughter.”
Defendant argues “that the crime committed under the uncontradieted testimony in this case could have been no greater than the crime of grand larceny unless the jury had believed some force or violence was used in abstracting the property.” The jury by its rejection of the robbery verdicts evidently did not believe *1176force or violence was used. I would remand the case with directions to reduce the sentence to the maximum punishment for grand larceny.
I am authorized to state that Oliver and Hats, JJ., join in this dissent..