California, United States of America
The following excerpt is from People v. Epps, 109 Cal.Rptr. 733, 34 Cal.App.3d 146 (Cal. App. 1973):
The instruction under which the court engrafted language of attempt upon the normal definition of theft by larceny (see CALJIC No. 14.02) does have somewhat of an inherent contradiction in that it may literally be read as defining an attempt to steal as the equivalent of larceny. The interposition of the word 'grand' on one rereading and the statement 'This is entitled theft by larceny' on another occasion admittedly would not lessen the confusion. Nevertheless, the instruction must be considered with others as a whole, i.e., with the instruction on attempt, the concluding phrase 'In [34 Cal.App.3d 169] this case it is known as attempted petty theft,' and the instructions as to the three possible verdicts. (See People v. Nichols, supra, 255 Cal.App.2d 217, 221--223, 62 Cal.Rptr. 854.) With that perspective it does not appear probable that the jury were misled by the instruction. The evidence, insofar as appellant was concerned, pointed to his aiding or abetting in burglary or no crime at all. He was improperly favored rather than prejudiced by any reference to a lesser offense. The record fails to show that appellant himself did not prepare and request the very instruction which he now contends was contradictory, confusing and misleading. No prejudicial error has been demonstrated in the instructions as given.
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