State v. Donovan
| Citation | 77 Utah 343,294 P. 1108 |
| Decision Date | 21 January 1931 |
| Docket Number | 5056 |
| Court | Supreme Court of Utah |
| Parties | STATE v. DONOVAN |
Appeal from District Court, Third District, Salt Lake County; D. W Moffat, Judge.
James Donovan was convicted of robbery, and he appeals.
AFFIRMED.
McCullough & Callister and S. A. King, all of Salt Lake City, for appellant.
Geo. P Parker, Attorney General, and L. A. Miner, Deputy Attorney General, for the State.
The appellant was tried before a jury upon a charge of robbery. He was found guilty and sentenced to imprisonment in the state prison. From the judgement he has appealed to this court. The questions presented by the appeal relate exclusively to alleged errors in the instructions of the court to the jury. The record on appeal does not purport to contain the evidence received at the trial. The bill of exceptions, with respect to the evidence, contains merely a stipulation that the circumstances of the crime committed were such as to constitute robbery. The evidence of the guilt of the accused is not brought up.
The information contained but one count, which was to the effect that the accused, while armed with a sawed-off shotgun, loaded with powder and bullets and tear gas, made an assault upon a bank messenger, and, by means of force and fear, did steal and take away from his person $ 34,000 in money.
At the trial the accused requested an instruction that the information contained but one count, did not include the crime of grand larceny, and that a verdict of guilty of grand larceny would not be justified. The court refused the request and instructed the jury that the crime of robbery, defining it, included the crime of grand larceny, defining it, and submitted both to the jury.
Complaint is made of this. It is contended that, because Comp. Laws Utah 1917, § 8834, provides that "the information or indictment must charge but one offense, * * * provided * * * that an information or indictment for robbery may contain a count for larceny," a separate count for larceny is necessary in an information in order to include it in the charge.
The statutory provision cannot be given the effect contended for. With respect to the cases where an offense necessarily includes one or more lesser offenses, the main crime cannot be charged without charging the included lesser offenses. In such case the requirement that the information or indictment must charge but one offense has no application, but the matter is governed by Comp. Laws Utah 1917, § 9025, which provides: "The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense."
While it is permissible in an information for robbery to include a separate count for larceny, it is not necessary to so plead larceny, because larceny is necessarily included in robbery, and a case of robbery cannot be stated without also stating a case of larceny. Under statutes similar to section 9025, the generally accepted modern rule is that an indictment for robbery will sustain a conviction of larceny. 31 C. J. 868. It must follow that no error was committed by submitting the included offense of larceny to the jury.
The court further instructed the jury that:
An exception was taken to the giving of this...
To continue reading
Request your trial
-
Peterson v. Sorensen
... ... heretofore indicated, walked into the shaft, with the results ... indicated. The complaint states facts sufficient to state a ... cause of action entitling plaintiff to relief at common law, ... and he therefore need not rely upon the provisions of the ... Workmen's ... charge ought not to have been given." ... See, ... also State v. Donovan , 77 Utah 343, 294 P ... These ... last cases are criminal and the instant case is civil; still, ... the doctrine there announced is ... ...
-
State v. Hall
... ... in connection with this instruction the court in this case ... instructed the jury that the State still must prove guilt ... beyond a reasonable doubt. Thus the instruction as given, ... though improper, could not have been [105 Utah 176] ... prejudicial error. State v. Donovan , 77 ... Utah 343, 294 P. 1108. But since the term "prima ... facie" is used in the statute in the sense of ... presumptive evidence ( State v. Potello , 40 ... Utah 56, 119 P. 1023) it would have been more proper to ... instruct the jury in substance that if it found from the ... evidence ... ...
-
In re Pilcher's Estate
... ... further. In two cases we seem to have held that a presumption ... cannot change the burden of persuasion, under the law of this ... state, even under a statute which expressly so provides ... Buhler v. Maddison , 109 Utah 267, 176 P. 2d ... 118, 168 A. L. R. 177; Peterson v ... Utah 479, 155 P. 343; State v. Sawyer , 54 ... Utah 275, 182 P. 206; State v. Mellor , 73 ... Utah 104, 272 P. 635; State v. Donovan , 77 ... Utah 343, 294 P. 1108; State v. Bruno , 97 ... Utah 33, 92 P. 2d 1103; State v. Hall , 105 ... Utah 162, 145 P. 2d 494; State v ... ...
-
State v. Prettyman
...of these cases hold that the giving of such instructions though improper are not reversible error unless prejudice is shown. See State v. Donovan, supra; v. Sawyer, supra; State v. Mellor, supra, holds such instructions not improper under certain circumstances; and State v. Hall, supra, hel......