The process of reasoning in the majority opinion in this case is very logical, but it leads me to a different conclusion. I agree that there was no error in the judge's refusal to charge the jury that they might render a verdict of guilty of larceny if, in their judgment, the defendants were guilty only of larceny. The indictment for robbery, in this case, did not include also an indictment for larceny, because the value (35 cents) of the thing alleged to have been stolen (a box of automobile tire patchings) was not stated in the indictment. In that respect, the judge was right in charging the jury that, if they found that the defendants were guilty only of larceny, the verdict would have to be not guilty, because the defendants would, in truth, be not guilty of the crime charged in the indictment. But the indictment for robbery, in this case, did include also an indictment for the crime of "stealing *Page 270 from the person," as defined in the Act 40 of 1914, p. 104. The statute declares:
"That whoever shall steal from the person of another,when such theft does not in law amount to robbery, or shall attempt to steal from the person of another, when such attempt shall not in law amount to an assault with intent to rob, shall on conviction thereof be imprisoned with or without hard labor for not more than five years."
I have italicized that part of the statute which virtually declares that the crime of stealing from the person may be committed in a way that will amount to the crime of robbery. Therefore the crime of robbery, essentially, includes the crime of stealing from the person, as defined by the act of 1914. It is not necessary to state the value of the thing stolen, in an indictment for stealing from the person. If the judge had instructed the jury — with regard to the crime of stealing from the person — as he instructed them with regard to larceny, that the defendants could not be convicted of the crime of stealing from the person, even if the jury found that they were guilty of that crime, but not guilty of robbery, the instruction would have been wrong; but the harm would have been done to the state, not the defendants, because such an instruction with regard to stealing from the person would have been — like the instruction which the judge gave with regard to the crime of larceny would have been if the value had been stated in the indictment — a more favorable instruction than the defendants were entitled to have. As it was, the judge refused to allow the jury to render a verdict of guilty of stealing from the person, as defined by the act of 1914.
For these reasons, I respectfully dissent from the majority opinion. *Page 271