Brown v. State

| Neb. | Apr 7, 1892

Post, J.

We have carefully re-examined all the questions argued in this case and are satisfied with the conclusion reached on the former hearing. There are but two points relied upon, apparently:

First — That on an indictment for robbery the accused cannot be convicted of larceny from the person.

Second — That the court erred in giving instruction No. 12 on its own motion.

It was held in Stevens v. State, 19 Neb., 647" court="Neb." date_filed="1886-01-15" href="https://app.midpage.ai/document/stevens-v-state-6644858?utm_source=webapp" opinion_id="6644858">19 Neb., 647, that on an indictment for robbery the accused could be convicted of grand larceny on the ground that the robbery is the greater crime and includes the larceny. The power of the legislature to add to the list of felonies will hot be seriously questioned. This it has done by making larceny from the-person a felony. It is in one sense larceny of a higher grade, since it is a felony without reference to the amount or value of the property stolen. It is an independent substantive, crime. It is declared to be, and is, larceny, and there is no reason why the rule announced in Stevens v. State is not applicable to this case.

The twelfth instruction is as follows: “You cannot, under the law and the evidence in this case, find the defendant guilty of petit larceny.” We do not understand the instruction to mean that there could in no case be a conviction for petit larceny on an indictment for robbery, but that under the evidence or admissions they should not convict of petit larceny in that case. The evidence was not preserved, and we cannot say that the instruction was not warranted by the proofs. In a prosecution for robbery, where the evidence tends to prove a larceny from the person only, it is not error to instruct the jury that they cannot find the accused guilty of petit larceny. If there is any evidence which tends to show that the larceny proved was not from .the person of the party named in the indictment, or if there is any controversy on that point, the question should be left to the jury to say whether the larceny was from the person, or simply larceny only. If larceny from the person, it is a felony, regardless of the amount or value of the property stolen. If it is simply larceny, the grade of the offense is determined by the value of the property stolen. There is no error apparent from the record and the judgment ¡3

Affirmed,

The other judges concur.