Opinion
1 Div. 69.
January 10, 1933.
Appeal from Circuit Court, Mobile County; J. Blocker Thornton, Judge.
H. C. Pierce, indicted on a charge of robbery, was convicted of grand larceny, and he appeals.
Affirmed.
Outlaw Seale, of Mobile, for appellant.
The crimes of robbery and grand larceny are separate and distinct, and, where the evidence discloses without conflict or dispute that the crime of robbery has been fully consummated, there is no room for a compromise verdict. Broadhead v. State, 24 Ala. App. 576, 139 So. 115; Weems v. State, 24 Ala. App. 590, 139 So. 571; Morris v. State, 97 Ala. 82, 12 So. 276.
Thos. E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst. Atty. Gen., for the State.
An indictment charging robbery includes larceny. Robbery is merely an aggravated larceny. While there may be evidence of robbery, the jury has ample evidence to find defendant guilty of larceny, and he cannot complain that he was not convicted of the higher offense. Code 1923, § 8697; Morris v. State, 97 Ala. 82, 12 So. 276; Rambo v. State, 134 Ala. 71, 32 So. 650; Higgs v. State, 113 Ala. 36, 21 So. 353; Green v. State, 68 Ala. 539; Black v. State, 83 Ala. 81, 3 So. 814, 3 Am. St. Rep. 691; 36 C. J. 734, 753; People v. Clark, 145 Cal. 727, 79 P. 434; State v. Graff, 66 Iowa, 482, 24 N.W. 6; State v. Smith, 190 Mo. 706, 90 S.W. 440; State v. Keeland, 90 Mo. 337, 2 S.W. 442; Bryant v. State, 158 Ala. 26, 48 So. 543; Buchanan v. State, 10 Ala. 103, 65 So. 205. It is not error to refuse charges substantially covered by the oral charge or other given charges. Code 1923, § 9509.
The principal insistence of appellant is that the evidence for the state, without dispute, proved a case of robbery, and that therefore a verdict by the jury finding the defendant guilty of grand larceny was unwarranted by the evidence and should be set aside. To sustain this contention, we are cited the case of Broadhead v. State, 24 Ala. App. 576, 139 So. 115, 116, where this court held that: "When crime is actually consummated, there can be no prosecution for attempt." The case at bar presents a very different question from that in the Broadhead Case, supra. In that case there was no evidence of an attempt. In the instant case the evidence proves all the elements of grand larceny, which charge is included in the indictment for robbery, and also tends to prove the elements of the higher degree. As to the robbery charge, the jury might, and doubtless did, conclude that the state had failed to meet the burden of proof.
The crime of robbery includes all the elements of larceny, with the one additional element of force or putting in fear, and a state of facts tending to prove the higher degree also tends to prove larceny. The degree is a question for the jury. Morris v. State, 97 Ala. 82, 12 So. 276; Code 1923, § 8697.
Refused charge 4 was substantially given by the court in written charge 1.
Refused charge 13 was substantially given in written charge 19.
Other questions presented are without merit.
There is no error. Let the judgment be affirmed.
Affirmed.