The Facts of the Case:
Petitioners were charged with breaking and entering with intent to commit a felony, to-wit: grand larceny. At a jury trial, petitioners requested an instruction on breaking and entering with intent to commit a misdemeanor, petit larceny, but this request was denied. Thereafter, the jury found the petitioners guilty as charged and the criminal court sentenced each of them to fifteen (15) years. On appeal, the District Court of Appeal, Second District, affirmed the guilty verdict holding that the proof of guilt was overwhelming and that any error committed by the court’s refusal of the requested instruction on the alleged lesser offense was harmless.
The case is now before the court for certiorari.
The Ruling of the Court:
Based upon the basic principles of evidence, a verdict cannot stand without proof to support it. As a rule, the accusatory pleading must apprise the defendant of all offenses of which he may be convicted. A New York Criminal Lawyer says this means that when the State makes a charge, ex parte though it may be, it is asserting that the defendant is guilty and may be convicted of that offense, all degrees thereunder when the offense is divided in degrees, the attempt to commit the offense, and any lesser offense which is an essential ingredient of the major crime charged; this also means that he may be convicted of any lesser offense, which, although not an essential ingredient of the major crime, is spelled out in the accusatory pleading in that it alleges all of the elements of the lesser offense and the proof at trial supports the charge. The gist is not what the defendant would like to persuade a jury he may be guilty of, but that the accusatory pleading apprise him of all offenses of which he may be convicted.
In the landmark case of Brown v. State, the court held that the proof of the lesser offense necessarily is shown by proof of the greater, e.g., armed robbery which is also obviously proof of an assault which becomes a classic necessarily included offense on which a charge (instruction) must be given. In that case, the proof inheres in the evidence of the armed robbery. However, such greater proof is not always proof of the lesser offense and here now lies the confusion. A Long Island Criminal Lawyer said the present case is illustrative.
In the case at bar, the only proof presented before the court is the $600.00 worth of liquor, non-depreciable and based on wholesale value and not just wholesale cost. There is no way to reduce the said amount to the less than $100 market value necessary to include the lesser offense of petty larceny. As a rule, market value is the standard. But here, wholesale value, absent contrary proof, sufficiently satisfies the recognized test. Had the evidence admitted of any finding on which the jury might have based a breaking and entering with intent to commit a misdemeanor, petit larceny, which is a proper lesser charge, then a jury instruction thereon should have been given. However, the court finds that the trial judge correctly perceived that such an instruction found no support in the evidence and was therefore inappropriate and would have been an error. The failure to instruct is a harmless error. As repeatedly held, a trial is not a game of roulette and is not one in which all of the numbers have to be played as possible offenses which might have been charged in the information but were not. The rule simply means that the trial judge must instruct (charge) on other offenses necessarily included in the offense charged, but the predicate of the rule in its beginning is that the jurors may convict of such an offense. Certainly there can be no conviction without evidence of such an offense which constitutes proof upon which the conviction can stand. The court fails to perceive any valid distinction as urged by petitioners in the application of the harmless error rule where the alleged lesser offense is claimed to be within the Brown category as necessarily included in the offense charged, and in those cases in which harmless error has been heretofore applied where the lesser offenses were in the Brown category of offenses which may be included. While the harmless error applied by the district court lies to affirm the convictions, the court also holds that there was in fact no error in the lower court’s decision. Thus, the petition for certiorari is discharged.
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