
    State of Iowa v. Frank Duffy, Appellant.
    Robbery: instructions: weight to be given evidence. In the ab-1 sence of a request, or a state of facts rendering it important, failure to instruct as to the weight to be given the testimony is not error.
    Instructions: included offenses. Where an indictment for robbery 8 charged that defendant struck and wounded the prosecutrix, failure to instruct as to the included offense of assault and battery was error.
    Same. In a prosecution for robbery, where the evidence would per-3 mit a finding of assault with intent to rob, failure to instruct in relation thereto was error.
    
      Appeal from, Fayette District Court.— Hon. L. E. Eellows, Judge.
    
      Friday, September 23, 1904.
    Dependant was tried on an indictment for robbery, and was convicted, and sentenced to imprisonment in tbe penitentiary at hard labor for tbe term of fifteen years, and from this sentence be appeals.
    
    Reversed.
    
      Tom. R. Milner, for appellant.
    
      Gluts. W. Mullan, Atty. Gen., and Lawrence Be Grajf, Asst. Atty. Gen., for tbe State.
   McClain, J.

There was competent evidence that defendant, while armed with a dangerous weapon, struck tbe prosecutor, and with force and violence stole and took from bis person property of value, and therefore the verdict was supported by tbe evidence, and tbe trial court did not err in refusing to set it aside. We find no error in tbe rulings as to tbe admission of evidence.

Complaint is made that no instruction was given a's to tbe weight to be given to tbe testimony of witnesses, but none was asked, and we see nothing in tbe record to indicate that any prejudice resulted from tbe failure to give such instruction. Tbe jury may certainly be .. 7 , . - . . depended upon, without instructions irom the court, to apply tbe ordinary rules as to tbe weight and credit to be given 'to tbe testimony of witnesses. In the absence of any request for such an instruction, or any state of facts rendering it peculiarly important that such an instruction be given, we are not inclined to reverse for failure to instruct on this question.

It is objected, however, that tbe court should have instructed tbe jury with reference to assault and battery as an included crime. Tbe jury was instructed as to larceny from tbe person and as to assault, but tbe indictment charges that the defendant struck and wounded the prosecutor, and it is therefore plain that the instruction as to the included crime of assault and battery should have been given.

The court also failed to instruct as to the crime of assault with intent to rob. See Code, section 4770. This was a very important matter, however, and the jury might well have found, under the evidence, that there was an assault with intent to rob, but that no robbery was actually committed. There was no instruction authorizing a conviction of anything more than a simple assault in case the jury should find that no money or other property was taken from the person of the prosecutor. i

Por errors of the lower court in failing to instruct as to the included crimes of assault with intent to rob and assault and battery, the judgment is reversed, and the case remanded for a new trial. — Reversed.  