
    STATE v. ANGLE et al.
    No. 3851.
    Decided March 26, 1923.
    Rehearing denied June 13, 1923.
    (215 Pac. 531.)
    1. Larceny — In Absence of Evidence, Instructions as to Lowe® Grades of Offense Charged Unnecessary. Instructions need not be given as to lower grades of the offense charged, where there is no evidence to reduce the offense thereto; so, the evidence warranting it, it is not error to charge that the verdict must be either of grand larceny, as charged, or not guilty.
    2. Criminal Law — In Absence of Evidence, Instructions Conclusively Presumed Based Thereon. The bills of exceptions having been stricken, so that the evidence is not, in the record, the instructions will be conclusively presumed to have been based on the evidenced.
    
    Appeal from District Court, First District, Box Elder County; A. A. Law, Judge.
    Frank Angle and another were convicted of grand larceny, and appeal.
    AFFIRMED.
    
      D. B. Hempstead, of Salt Lake City, for appellants.
    
      Harvey H. Cluff, Atty. Gen., and W. Hal. Farr, Asst. Atty. Gen., for the State.
    
      
      
         State v. Oblizalo, 60 Utah, 47, 205 Pac. 739; State v. Thorne, 41 Utah, 414, 126 Pac. 286, Ann. Cas. 1915D, 90; State v: Mewhinney, 43 Utah, 135, 134 Pac. 632, L. R. A. 1916D, 690, Ann. Cas. 1916C, 537.
    
   WEBER, C. J.

From the judgment of conviction upon a charge of grand larceny defendants appeal.

On motion of the Attorney General the bill of exceptions was stricken from the record on the ground that the same was not settled by the trial judge within the time limited by Comp. Laws Utab 1917, § 6969.

Tbe question to be determined is raised by appellants’ assignment tbat tbe court erred in instructing tbe jury tbat tbe Yerdict must be either tbat tbe defendants are guilty of grand larceny, as charged in tbe information, or not guilty. It is argued tbat because larceny is divided into two degrees, grand larceny, a felony, and petit larceny, a misdemeanor, tbe court in its charge should have covered tbe offenses included in tbe information.

It is a well-settled rule tbat instructions as to lower grades of tbe offense charged should be given when warranted by tbe evidence. It is equally well settled tbat in a criminal .prosecution error cannot be predicated on tbe omission of tbe trial court to instruct as to lesser grades of tbe offense charged where there is no evidence to reduce tbe offense to a lesser grade. 1 Blashfield, Instructions to Juries (2d Ed.) § 408.

Under tbe subject of “Larceny,” 25 Cye. p. 154, tbe author says:

“There is no need of an instruction as to the grade of the offense when there is no evidence that such a degree has been committed.”

In 14 R. C. L. p. 792, § 53, tbe test is:

“Where, under the evidence given, the defendant in a criminal case must either he guilty of a certain offense or entitled to an acquittal, the jury need not he instructed as to other offenses to which the evidence in the case has no relation, and where, if the facts are as claimed by the state, a crime could not under any circumstances he of a lower grade than that charged, it is not necessary to instruct on the lower grades.”

Tbe bill of exceptions having been stricken, tbe evidence is not bere for review- In tbis connection it is only fair to present counsel for appellants to state tbat be is in no way responsible for tbe neglect tbat resulted in tbe elimination of tbe bill of exceptions.

In tbis condition of tbe record it must be conclusively presumed tbat tbe instructions were based upon tbe evidence. State v. Oblizalo, 60 Utab, 47, 205 Pac. 739; State v. Thorne, 41 Utah, 414, 126 Pac. 286, Ann. Cas. 1915D, 90; State v. Mewhinney, 43 Utab, 135, 134 Pac. 632, L. R. A. 1916D, 590, Ann. Cas. 1916C, 537. It follows that the instruction complained of was proper.

Judgment affirmed.

GIDEON, FRICK, THURMAN, and CHERRY, JJ., concur.  