I. As, in my opinion, the charge in the indictment of robbery is fully sustained by the evidence, and the included offense of larceny should not have been submitted to the jury, I deem it not improper for me to briefly state the grounds upon which my conclusion is based. The record is singularly free from dispute as to the facts. All of the witnesses who testified on the point agree that the defendant and the prosecuting witness entered the restaurant together, and that, while they were there, an altercation ensued between them, in which the prosecuting witness was knocked down by the defendant. A very little later, the defendant with some assistance, removed the prosecuting witness from the restaurant to an adjoining space between it and another building. The removal of the prosecuting witness from the restaurant was accomplished in part by the defendant by dragging him into the open space.
The testimony on behalf of the State as to the alleged robbery was confined wholly to what occurred outside of the restaurant. The witnesses varied somewhat in their testimony, but it was not disputed on the trial. Later in the evening, both the defendant and the prosecuting witness were arrested, and confined in separate cells in the local jail. Both were more or less intoxicated. The following morning, the prosecuting witness discovered that his watch had been lost or stolen. He spoke to the defendant, who was, as stated, confined in a nearby cell, and asked him about the watch. The defendant stated that it was thrown out of the pocket of the prosecuting witness during the altercation in the restaurant; that it was picked up by him off the floor, and retained for safe-keeping. At this time, the defendant attempted to restore the watch, but the two men could not reach each other through the bars. The above incident was shown in the evidence by the testimony of the prosecuting witness only. Other witnesses who were in the restaurant testified that the watch did not fall upon the floor, and that it was not picked up by the defendant.
The majority agree that it is not error for the court to refuse to submit an included offense which is wholly without support in the evidence. Was it, therefore, error for the court in this case to refuse to submit to the jury the included offense *Page 382 of larceny? I think not. In the first place, the testimony as to the conversation between the prosecuting witness and the defendant did not bear at all upon this question. The defendant cannot, under the record, justly claim that the offense committed, if any, was larceny. What occurred in the restaurant was wholly separate and distinct from what occurred outside. If the facts detailed by the prosecuting witness as to the conversation at the jail in any degree tend to prove larceny, the crime was fully consummated in the restaurant, and therefore could upon no conceivable theory be regarded as included in what occurred outside. The robbery, if any was perpetrated, was in the open space between the buildings outside of the restaurant, and in no way connected with the altercation therein. The two occurrences were wholly separate and distinct. The indictment does not charge the defendant with the larceny of the watch in the restaurant, but with the crime of robbery, begun and consummated in another place.
The purpose and effect of the evidence as to the conversation in the jail were to tend to show that the defendant had committed no crime whatever, but that he had, on the contrary, benevolently, and in the interest of his friend, picked up the watch for the sole purpose of preserving and keeping it for him. The evidence bore only upon the question of the defendant's guilt or innocence, and in no respect related to larceny as an included offense. In my opinion, if the court had submitted larceny as an included offense in this case, it would have committed reversible error.
II. The majority also hold that the court erred in refusing to give a requested instruction as to intent, which is copied in full in the opinion. The intent of the defendant to appropriate the watch to his own use was an essential element of the crime. The burden was on the State to prove such intent. The court, in my opinion, fully covered the law on this point in several paragraphs of its charge.
In Paragraph 7, the jury was told that, if it found that the watch was taken by the defendant, "still the defendant could not be convicted of the crime charged unless you also find beyond a reasonable doubt that said property was taken with the intent ofstealing, — that is, of depriving the owner thereof. * * * But if you fail properly to find that the said watch was *Page 383 taken with the intent then and there to convert the same to his own use, * * * then you should acquit the defendant."
The court, in Paragraph 8, further said:
"If, from all the evidence and the facts and circumstances in the case, you find beyond a reasonable doubt that the defendant, at the time and place named, intended to steal the property described, then it would be your duty to find him guilty; but if, from all the evidence and facts and circumstances in the case, you have a reasonable doubt as to his felonious intent, then it would be your duty to acquit the defendant."
Again, in Paragraph 9:
"The jury should bear in mind that the intent in question must be that intent which the defendant had at the time of the alleged taking; and if, at the time of said taking, there was such felonious intent, then the defendant would be guilty, and it could make no difference, and he would be equally guilty, if thereafter he changed his mind, and returned or made an effort to return the property to the owner. The jury should examine all the facts and circumstances disclosed by the evidence, and determine whether or not, at the time of the alleged taking, there was such felonious intent, which constitutes an essential element of the crime charged."
The foregoing instructions were, in my opinion, equally as favorable to the defendant as the one requested, if not more so. The court should not have made particular reference to the evidence as to the conversation between the prosecuting witness and the defendant in the jail. If the testimony of what there occurred was admissible for any purpose, it was for its bearing upon the intent of the defendant, and, therefore, upon the ultimate question of his guilt or innocence. There is no particular in which it could have sustained the submission to the jury of larceny as an included offense. In my opinion, the crime charged in the indictment was fully established. There is nothing in the record to support a conviction of larceny, or to require the submission to the jury of this crime as an included offense. The defendant was guilty of robbery, as charged, or should have been acquitted. *Page 384