Our cases of Van Keuren v. Travelers Indem. Co., 27 Ga. App. 367 ( 108 S.E. 310) and Still v. Great Central Ins. Co., 122 Ga. App. 99 ( 176 S.E.2d 268), dealing with policies containing similar language and losses occurring under circumstances which would seem to raise closer questions than this evidence could, are determinative of the issue. Among the cases from a majority of our sister states arising under this policy language and dealing with losses under circumstances of a similar nature, and which reach the conclusion reached in our own cases are Austin L. Burgess, Inc. v. Lumbermens Mutual Cas. Co., 348 Mass. 616 ( 205 N.E.2d 1); Cole v. Hartford Accident c. Co., 242 Iowa 416 ( 46 N.W.2d 811); Sklar v. Globe Indem. Co., 129 Cal.App. 439 ( 18 P.2d 981); Jones v. Auto Owners Ins. Co., 43 Ala. App. 101 ( 180 So.2d 145); Grimes v. Maryland Cas. Co., 300 Ill. App. 62 ( 20 N.E.2d 982); Ashcraft v. U.S. F. G. Co. (Ky.App.) 255 S.W.2d 485; Anderson v. Hartford Acc.c. Co., 77 Cal.App. 641 ( 247 P. 507); Citizens Loan c. Co. v. St. Paul Mercury Indem. Co., 195 Minn. 515 ( 263 N.W. 541). The evidence here shows no more than a larceny of the money from the seat of the car by somebody at a time when the custodian was unaware that it happened.

Schwegmann is the only cited case applying a similarly worded policy on facts where an agent of the insured observes the act, but not its criminal nature.Thus, for example, in Jones v. Auto Owners Insurance Co., 43 Ala.App. 101, 180 So.2d 145 (1965), a jewelry store clerk felt something was amiss after a group of shoppers left, and after investigation discovered that watches and rings were missing. But the clerk could not have observed, and did not observe, the legerdemain by which the property was taken (that is, the felonious act). As the Jones court stated,

Tiarks v. First Natl. Bank, 279 Ala. 100, 182 So.2d 366; Globe Life Ins. Co. v. Howard, 41 Ala. App. 621, 147 So.2d 853. Ambiguity as a reason to construe a policy is never a mere excuse to ignore commonly understood phrases. Jones v. Auto Owners Ins. Co., 43 Ala. App. 101, 180 So.2d 145; Wendt v. Wallace, 185 Minn. 189, 249 N.W. 470. In order for other insurance to exist the two policies must cover the same interest, the same subject matter, and be insurance taken out by the named insured in that policy.

Well defined criminal law terms may be resorted to in order to determine the scope of the same terms at civil law. Jones v. Auto Owners Insurance Co., 43 Ala. App. 101, 180 So.2d 145 (1965). Vandalism or malicious mischief results from acts done willfully and maliciously.

Where there is testimony showing that the crime of robbery was never completed but testimony showing commission of the lesser included offense of larceny, the Court has the duty to charge the jury as to the lesser included offense of larceny. Jones v. Auto Owners Insurance Company, 43 Ala. 708, 180 So.2d 145 (1965); Henderson v. State, 172 Ala. 129, 55 So. 816 (1911); Strong v. State, 52 Ala. 237, 291 So.2d 325 (1974); Johnson v. State, 32 Ala. 240, 24 So.2d 228 (1948). William J. Baxley, Atty. Gen., Montgomery, and David L. Weathers, Asst. Atty. Gen., Birmingham, for the State, appellee.