Numerous errors are assigned herein, the first arising from certain instructions offered by the defendant, which were refused by the court, to the point that larceny was an included offense under the charge here made against the defendant, and should have been submitted to the jury.
Under Section 13919, Code of 1927, the jury is given the power to find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto or of an attempt to commit the offense.
Section 13920 reads as follows:
"In all other cases, the defendant may be found guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment." *Page 375
As to just what is an "included offense," the authorities seem fairly clear.
Every crime charged consists of certain specific elements, and if, from the elements of the crime charged, certain elements thereof may be taken, thereby leaving the necessary elements of another crime, the latter would be an included 1. INDICTMENT offense. Or, to state it in another way, if AND INFOR- certain elements are necessary to a criminal MATION: in- charge, and these elements, plus certain other cluded off- elements, make the necessary elements of a enses: lar- higher crime, then the lower crime is included ceny from in the higher one. To illustrate: Certain person and elements are necessary to a simple assault. If, larceny. in addition to these elements, the evidence shows the completed assault, then we have an assault and battery, because assault is necessarily included in a charge of assault and battery. On the other hand, if to the elements of assault is added an intent to do great bodily injury, we have a higher crime, which necessarily includes assault. So with assault with intent to commit manslaughter, or with intent to commit murder. Each of these charges is included in an assault, and this is equally true of murder in either degree, or manslaughter. Or, to state it in still another way, where the minor offense is necessarily an elementary part of the greater, then the minor offense is included in the greater.
In our own cases we have held that assault is included in a charge of assault and battery (Dixon v. State, 3 Iowa 416; Statev. Graham, 51 Iowa 72); that it is included in an assault with intent to do great bodily injury (State v. Schele, 52 Iowa 608); also in assault with intent to commit manslaughter (State v.Smith, 100 Iowa 1); that it is included in an assault with intent to do great bodily injury (State v. Shaver, 197 Iowa 1028); in an assault with intent to commit murder (State v. Walker, 133 Iowa 489) . Assault and battery are not necessarily included in assault with intent to commit rape, because the element of battery is not necessary to the charge. State v. McAvoy, 73 Iowa 557; State v.Roby, 194 Iowa 1032. Yet, if the indictment charges battery, it is included. State v. Kyne, 86 Iowa 616; State v. Perkins,171 Iowa 1.
We have held that in a charge of robbery, assault is included(State v. Becker, 159 Iowa 72), as well as an assault *Page 376 to rob (State v. Duffy, 124 Iowa 705); also, that larceny is included in a charge of robbery (State v. Mikesell, 70 Iowa 176;State v. Reasby, 100 Iowa 231; State v. Taylor, 140 Iowa 470); also, that a charge of robbery includes larceny from the person(State v. Taylor, supra). These cases, with many others in our courts, are illustrative of the rule above suggested.
If we turn to the instant case for application of the rules above suggested, the defendant is charged with larceny from the person, and the question is whether the court should have submitted to the jury the requested instruction of the defendant on the crime of larceny. In other words, is larceny necessarily included in a crime of larceny from the person? To our minds, there can be but one answer to this question. Before the higher crime can be proven, every element of a charge of larceny must be proven, to which must be added proof that the property is taken from the person of the prosecuting witness, to make the higher charge. If the taking of the property of the prosecuting witness is shown to have been in fact a larceny, though it was not taken from the person, then there is no reason why the defendant could not be convicted of larceny, under a charge of larceny from the person. We held, in State v. Mikesell, supra, that the crime of larceny from a building necessarily includes the crime of larceny, and that, under a charge of larceny from a building in the nighttime, a conviction of simple larceny might be sustained. See, also, State v. Nordman, 101 Iowa 446.
In the case of State v. Gleason, 56 Iowa 203, we had a case where the defendant had been convicted of larceny before a justice of the peace, and, based on the same act, he was subsequently indicted for larceny from the person. We there held that his conviction for the larceny was good, as a plea of former conviction. See, also, State v. Sampson, 157 Iowa 257.
In State v. Clem, 49 Wn. 273 (94 P. 1079), the charge was that of larceny from the person. The court submitted the included offense of larceny, and the jury convicted of the latter offense. Defendant appealed, on the ground that assault was not an included offense. That court said:
"To feloniously take from the person of another the goods of that other and carry the same away has always been a crime, punishable as either grand or petit larceny. Therefore, when *Page 377 the legislature defined and made punishable the specific act of feloniously taking property from the person, it did not create a new offense; it but recognized that there were degrees in larceny, some of which were deserving of more severe punishment than others, and sought to regulate the punishment in proportion to the offense. Larceny from the person, grand larceny, and petit larceny are for this reason but different degrees of the same crime, and are properly included in an information charging the higher offense; and being so, it is, of course, proper for the jury, on an information charging the higher offense, to find the accused guilty of any one of the lesser offenses that the facts proven will warrant."
See, also, State v. Steifel, 106 Mo. 129 (17 S.W. 227), and 31 Corpus Juris 867.
We conclude, therefore, that, under a charge of larceny from the person, simple larceny is necessarily included.
This, of course, is all subject to the further rule that the evidence must justify the submission of the included offense. That is to say, 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. State v. Kyne, supra; State v. Hutchinson, 95 Iowa 566; State v. Trusty, 118 Iowa 498; State v. Egbert, 125 Iowa 443; State v. Barkley, 129 Iowa 484; State v. Perkins, 171 Iowa 1; State v. Ockij, 165 Iowa 237; State v. Leete, 187 Iowa 305;State v. Huckelberry, 195 Iowa 13. Also, where, under the evidence, the defendant is clearly guilty of the offense charged, or not guilty, it is not error to fail to give instructions with reference to included offenses. State v. Sterrett, 80 Iowa 609;State v. Akin, 94 Iowa 50; State v. Dean, 148 Iowa 566; State v.Haywood, 155 Iowa 466; State v. Fortune, 196 Iowa 884; State v.Speck, 202 Iowa 732; State v. Flory, 203 Iowa 918.
We turn now to the evidence in the case, for an application of these rules. The evidence offered by the State, in substance, was that, about 6:30 or 7 P.M. on May 15, 1927, the defendant and one Merle Jamison, both more or less intoxicated, entered a restaurant, in Wapello, going into what we assume from the evidence was a rear room. While they were therein, a quarrel ensued between them, with the result that *Page 378 the defendant struck Jamison with his fists, knocking him down in such manner as to break a table loose from its fastenings and throw it upon the floor. The blows were either of sufficient force to stun Jamison or, because of his intoxicated condition, he made no effort to get up, but lay on the floor, supporting himself on his elbow. Shortly after the altercation, defendant and one James Johann carried Jamison to a door of the restaurant, from which he was dragged by the defendant to a small open space between the restaurant and another building, and left lying on the ground. The open space was immediately adjacent to the sidewalk, and visible from the street. When he entered the restaurant, Jamison was carrying a gold watch in his watch pocket, which was attached by a clasp and chain to the buckle of his belt. Some witnesses on behalf of the State testified that, when Jamison was lying in the space between the two buildings above referred to, they saw the defendant searching Jamison's pockets, or taking something therefrom which had the appearance of a watch. Jamison and the defendant were both arrested and placed in jail. Jamison testifies that, in the forenoon of the following day, while they were in jail, he discovered that his watch was missing. The two prisoners were confined in adjacent cells, and were engaged in friendly conversation. Jamison says that, when he discovered that his watch was gone, he told the defendant, and defendant admitted that he had it, and tried to return it to Jamison, but that the construction of the cells was such that it prevented this from being done. Jamison also testifies that the defendant said that the chain to the watch caught on the table at the restaurant, and when Jamison fell, the watch fell out of his pocket to the floor, and that he (defendant) picked it up, to preserve it. There is no other evidence in the case touching this proposition.
The prosecuting witness and defendant had been acquainted all of their lives, their relations were friendly, and they seem to have been "bottle" companions. The evidence shows that both were, to some extent, under the influence of intoxicating liquor at the time of this occurrence, although Jamison seems to have been more deeply intoxicated than the defendant. The State introduced testimony to show the value of the watch, and also several witnesses to show that the statement made by the defendant to Jamison about the watch's falling on the floor of *Page 379 the restaurant was untrue. The defendant did not take the witness stand. What his version of this transaction was, is in no way evident, except the statement made by him to Jamison as to the manner of his coming into possession of the watch. Was the evidence in this case such that the jury could have found that the defendant was guilty of larceny, and not larceny from the person?
The rule, as above explained, seems to be well settled that ordinary larceny was included in the charge herein made against the defendant. The question then left is 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. We are constrained to hold that there was.
It is to be remembered that the defendant is here insisting that the crime of larceny should have been submitted to the jury. He is not insisting that the evidence was not sufficient to hold the defendant guilty of any crime. It might be, under the testimony, if we accept the defendant's theory, that the watch was thrown from the pocket of Jamison at the time of the scuffle in the restaurant; but the jury might find, from all of the facts in the case, that, even though that be true, when Marshall picked up the watch, he had an intent to steal it. We think this question of larceny, as an included offense, should have been submitted.
The defendant, at the proper time, requested the giving of an instruction covering the question of criminal intent, which was refused by the court. The requested instruction reads as follows:
"You are instructed that, in order to constitute the crime of larceny from the person, it is incumbent upon the State to prove, beyond a reasonable doubt, that the defendant, at the time he took the watch in his possession, and from the 2. LARCENY: person of the prosecuting witness, intended to intent: appropriate the watch to his own use; and if you inadequate find by a fair preponderance of the evidence instruct- that he intended to return the watch to its ions. rightful owner, then the defendant is not guilty of the crime charged, and you should so find." *Page 380
The complaint is that the latter part of this instruction should have been given: that is to say, that, if the watch were taken with intent to return it to its rightful owner, defendant would not be guilty of the crime charged.
The court gave three instructions on this question of criminal intent. They are too long to set out in haec verba, but suffice it to say that they at no place contain any reference to this part of the instruction in question. Ordinarily, this would not be error, or, if error, would be nonprejudicial; but, under the peculiar facts in this case, we are led to conclude that it was prejudicial error.
The State introduced testimony to the effect that the defendant said he took possession of the watch to preserve it for the owner. Apparently, the defense made was bottomed on this proposition, and it therefore became material for the jury to determine whether the defendant took this watch with intent to steal it, or with intent to return it to the owner. Having made this claim as a defense, he was entitled to have his theory of the case submitted to the jury; and, the court having failed so to do, the error was prejudicial. The necessity for giving this instruction is made more apparent by reference to the testimony in the case. A long and friendly relationship existed between the parties, and they were both, to a greater or less extent, under the influence of intoxicating liquor. The testimony of Jamison, introduced on the part of the State, that defendant said that the chain caught on the table at the restaurant, and that, when he (Jamison) fell, and the watch fell from his pocket to the floor, defendant picked it up to preserve it, is a matter which tends to call for the giving of this instruction. We reach this conclusion more readily because the State put this issue in the case, and introduced evidence to contradict this statement.
It further appears from the testimony that Jamison had his picture taken, the day after the trouble which was the basis of this charge, and, over objection, this photograph was admitted in evidence. On just what theory, we are unable to determine. We have not the photograph before us, but are unable to conceive of any reason why this photograph was admissible in evidence. —Reversed.
EVANS, De GRAFF, MORLING, and WAGNER, JJ., concur. *Page 381
STEVENS, C.J., dissents.