State v. O'Day , 93 Utah 387 ( 1937 )

I concur. The case of Mehr v. Child, 90 Utah 348,61 P.2d 624, is not controlling. In that case the instruction on which the case was reversed did not apply to any evidence introduced but was of such a special character as to mislead the jury into believing that there might be such evidence. In the instant case we have a mere general statement of law, true but not applicable to the evidence, but it could not in any case have misled the jury. A principle of law, abstract and general, included in the instructions, even though not applicable to the facts, which could not possibly have misled the jury, is not a cause for reversal. It must be treated as non-prejudicial surplusage. Defining the crime of petit larceny abstractly and abstractly informing the jury that it was included in the crime of robbery, could not prejudice the jury when no verdict could have, under the evidence, been brought in for petit larceny and they were prevented from being misled to bring it in because no verdict for it was submitted.