State v. O'Day
Decision Date | 02 December 1937 |
Docket Number | 5913 |
Citation | 73 P.2d 965,93 Utah 387 |
Parties | STATE v. O'DAY |
Court | Utah Supreme Court |
Appeal from District Court, Seventh District, Carbon County; George Christensen, Judge.
Jack O'Day was convicted of grand larceny, and he appeals.
AFFIRMED.
F. B Hammond, of Price, for appellant.
Joseph Chez, Atty. Gen., and Zelph S. Calder, Deputy Atty. Gen., for the State.
OPINION
Defendant was convicted in the district court of Carbon county, of grand larceny and appeals. The information charged robbery, in that defendant by force and fear, through the use of a rifle and a revolver, took certain personal property from the person, possession, and immediate presence of Tom Overton. There is no allegation or proof of the value of the property taken, all of which was second-hand, except a $ 5 bill. But one question is raised on this appeal. The trial court gave to the jury instruction No. 5, wherein he defined both grand larceny and petit larceny, and added "You are further instructed that crimes of grand larceny and petit larceny are included offenses in the crime of robbery." The court then submitted to the jury the finding of one of three verdicts: Guilty of robbery, guilty of grand larceny, and not guilty. The question of guilt of petit larceny was not submitted to the jury. The appellant now contends that, since the court stated the offense of petit larceny was included in robbery, the court was duty bound to submit such possible verdict to the jury.
We have read the transcript from beginning to end. No request was made to submit to the jury the question of guilt of petit larceny, and no exception was taken to the failure of the court to submit to the jury a possible verdict of petit larceny.
After the instructions were read and the district attorney had made his opening argument, counsel for defendant said.
Counsel for defendant: And counsel then went on with his argument. Defendant's only exception to the charge was to instruction No. 10, not assigned as error. After the verdict had been found, but before it was returned into court, counsel for defendant addressed the court as follows:
The court denied the request to withdraw instruction No. 5. No request for further or supplementary instructions was made. It...
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State v. Lucero
...not be taken from her person. He would seem to be justified in his belief from what this court said in the case of State v. O'Day, 93 Utah 387, 390, 73 P.2d 965 (1937): We have read the transcript carefully, and, if any property was taken, it was taken from the person or immediate presence ......
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State v. Petralia
...value of the property taken was not called to the attention of the jury. The state in support of the instruction cites State v. O'Day, 93 Utah 387, 73 P.2d 965, 966, wherein this court in discussing alleged error of the trial court in failing to instruct on petit larceny, stated 'We have re......
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