The appellant was charged by information with robbery with аn allegation of a prior felony conviction. Aftеr a trial by jury, the appellant was found guilty of said crime аnd the allegation of the prior felony conviction was found to be true. Appellant was sentenced to a term of not less than ten nor more than fifteen years in the Arizona State Prison. Appellant now appeals from his conviction.
The record discloses that оn February 16, 1973, the victim was walking on a street in downtown Phoenix. Whilе walking, he was grabbed from behind by two men who held him and rifled his pоckets. After taking $42.00 from the victim, they ran from the scene. •
Thе appellant was subsequently identified by the victim a short time later as one of the two men who grabbed him. The appellant was arrested and charged with robbery. The оnly issue at the trial was *26 whether the appellant was one of the two robbers.
On appeal the only issue raised is did the trial court err in its instructions to the jury regarding the necessary elements of the crime of robbery? The crime of robbery is defined by A.R.S. § 13-641 as follows:
“Robbery is the felonious taking оf personal property in the possession of аnother from his person, or immediate presencе, and against his will, accomplished by means of force or fear.”
The instruction given by the court of the definition оf robbery differed from A.R.S. § 13-641 in that the court omitted the word “felonious” when it read the definition to the jury. It is incumbent upon the trial judge to instruct the jury upon the law which relates to the facts of the case and matters necessary for рroper consideration of the evidence. In the event the trial judge fails to instruct the jury on a matter vital to the rights of the defendant, then such an omission constitutes fundаmental error. State v. Evans,
The issue оn appeal then becomes whether the omission of the word “felonious” and its bearing on the issue of intent deprive the appellant of a right essential to his dеfense? The appellant was on trial for robbery. The appellant’s sole defense was that the victim hаd identified the wrong person. The appellant denied that he had taken any money from the victim. The evidenсe presented by the state clearly supported the charge.
In cases where the issue of specific intent is not material to the determination of the guilt of the defendant, we have held that any error in the instructions regarding intent is not reversible error. State v. Evans, supra; Stаte v. Gomez,
Under the facts of the case, and taking into account the appellant’s defense, it was not fundamental error for the court to omit the adjective “felonious” when instructing the jury on the definition of robbery.
We have also reviewed the entire record as required by A.R.S. § 13-1715 and State v. Burrell,
Judgment affirmed.