State v. Marshall

• Citation: 206 Iowa 373,220 N.W. 106
• Decision Date: 26 June 1928
• Docket Number: No. 38951.,38951.
• Parties: STATE v. MARSHALL.
• Court: United States State Supreme Court of Iowa

206 Iowa 373

220 N.W. 106

STATE

v.MARSHALL.

No. 38951.

Supreme Court of Iowa.

June 26, 1928.

Appeal from District Court, Louisa County; Oscar Hale, Judge.

Defendant was convicted in the court below of the crime of larceny from the person, and appeals from a judgment imposing upon him an indeterminate sentence of 15 years in the penitentiary at Ft. Madison. Reversed.

Stevens, C. J., dissenting.F. M. Molsberry, of Columbus Junction, for appellant.

D. N. Johnson, Co. Atty., of Wapello, John Fletcher, Atty. Gen., C. J. Stephens, Asst. Atty. Gen., and E. R. Hicklin, special prosecutor, of Wapello, for the State.

ALBERT, J.

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 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.

[1] 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.”

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 offense; or, to state it in another way, if certain elements are necessary to a criminal charge, and these elements, plus certain other elements, make the necessary elements of a higher crime, then the lower crime is included in the higher one. To illustrate: Certain elements are necessary to a simple assault. If, 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.

Turning to our cases, we have held that assault is included in a charge of assault and battery, Dixon v. State, 3 Iowa, 416;State v. Graham, 51 Iowa, 72, 50 N. W. 285; that it is included in an assault with intent to do great bodily injury, State v. Schele, 52 Iowa, 608, 3 N. W. 632; also in assault with intent to commit manslaughter, State v. Smith, 100 Iowa, 1, 69 N. W. 269; that it is included in an assault with intent to do great bodily injury, State v. Shaver, 197 Iowa, 1028, 198 N. W. 329; and in an assault with intent to commit murder, State v. Walker, 133 Iowa, 489, 110 N. W. 925. 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, 35 N. W. 630;State v. Roby, 194 Iowa, 1032, 188 N. W. 709. Yet, if the indictment charges battery, it is included. State v. Kyne, 86 Iowa, 616, 53 N. W. 420;State v. Perkins, 171 Iowa, 1, 153 N. W. 146.

We have held that, in a charge of robbery, assault is included, State v. Becker, 159 Iowa, 72, 140 N. W. 201; as well as an assault to rob, State v. Duffy, 124 Iowa, 705, 100 N. W. 796; also that larceny is included in a charge of robbery, State v. Mikesell, 70 Iowa, 176, 30 N. W. 474;State v. Reasby, 100 Iowa, 231, 69 N. W. 451;State v. Taylor, 140 Iowa, 470, 118 N. W. 747; 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.

[2] Turning to the instant case for an 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, 70 N. W. 621.

In the case of State v. Gleason, 56 Iowa, 203, 9 N. W. 126, 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, 138 N. W. 473, 42 L. R. A. (N. S.) 967.

In State v. Clem, 49 Wash. 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 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 of 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 C. J. 867.

We conclude, therefore, that under a charge of larceny from the person that simple larceny is necessarily included.

[3] 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, 64 N. W. 610;State v. Trusty, 118 Iowa, 498, 92 N. W. 677;State v. Egbert, 125 Iowa, 443, 101 N. W. 191;State v. Barkley, 129 Iowa, 484, 105 N. W. 506;State v. Perkins, 171 Iowa, 1, 153 N. W. 146;State v. Ockij, 165 Iowa, 237, 145 N. W. 486;State v. Leete, 187 Iowa, 305, 174 N. W. 253;State v. Huckelberry, 195 Iowa, 13, 188 N. W. 587. 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, 45 N. W. 401;State v. Akin, 94 Iowa, 50, 62 N. W. 667;State v. Dean, 148 Iowa, 566, 126 N. W. 692;State v. Haywood, 155 Iowa, 466, 136 N. W. 514;State v. Fortune, 196 Iowa, 884, 194 N. W. 65;State v. Speck, 202 Iowa, 732, 210 N. W. 913;State v. Flory, 203 Iowa, 918, 210 N. W. 961.

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 therein, a quarrel ensued between them, with the result that the defendant struck Jamison with his fists, knocking him down in such a 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...