¶1(dissenting) :
¶2I dissent. The main opinion cites State v. O’Day,
¶3This language is clear and general in application, and makes no distinction between a case where “the defendant had held the victim at gunpoint for a long period of time,” nor whether $5.00 or $17,000.00 was taken from the immediate presence of the victim, nor whether the main dpinion’s gratuity might maintain, to the effect that this court evidently thought that the defendant was lucky in being convicted of the included offense of grand larceny instead of robbery.
¶4After referring to the O’Day case, which contains no such fine distinctions as those urged in the main opinion here, the latter proceeds to indulge a complete non sequi-tur when it continues, saying that the instant case is one of first impression, — • which it is not, — and that “We are now required to determine whether stealing from the immediate presence of one constitutes grand larceny regardless of the value of the article stolenWe are not required to determine that question at all since State v. O’Day already has decided it by holding the offense to be complete if “any property was taken,” — not if something of value less than the amount mentioned in the petit larceny legislation was taken. State v. O Day appears to be the law of this State with respect to “immediate presence” and “grand larceny,” irrespective of dollar value. (Emphasis supplied.)
¶5The judgment should be affirmed.
¶6. 93 Utah 387, 73 P.2d 965 (1937).
¶7. Which speculation is not reflected in the decision in State v. O’Day, and even if it were would be speculation that certainly would impugn the legal integrity of the members of this court participating in that case.