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Geo. 4, c. 30, s. 8, of beginning to demolish, though their principal object might be to injure the lumper, provided it was also their object to demolish the house, on account of its having been used by him. Batt's case, 6 C. and P. 329 (a).
Proof of a rout. A rout seems to be, according to the general opinion, a disturbance of the peace, by persons assembling together, with an intention to do a thing, which, if executed, would make them rioters, and actually making a motion towards the execution thereof. Hawk. P. C.b. 1, c. 65, s. 8; 1 Russell, 253.
Proof of an unlawful assembly.] Any meeting whatsoever of [ *824 ] *great numbers of people, with such circumstances of terror as cannot but endanger the public peace, and raise fears and jealousies amongst the King's subjects, seems properly to be called an unlawful assembly, as where great numbers complaining of a common grievance, meet together armed in a warlike manner, in order to consult respecting the most proper means for the recovery of their interests, for no one can foresee what may be the event of such an assembly. Hawk. P. C. b. 1, c. 65, s. 9. The circumstances which constitute an unlawful assembly were much discussed in the case of Redford v. Birley, 3 Stark. N. P. C. 76 (b). In that case, Holroyd, J., said, an unlawful assembly is where persons meet together in a manner and under circumstances which the law does not allow, but makes it criminal in those persons meeting together in such a manner, knowingly, and with such purposes as are in point of law criminal. He then proceeded to state what may constitute an unlawful assembly, adopting the language used by Bayley, J., in Hunt's case at York. All persons assembled to sow sedition, and bring into contempt the constitution, are an unlawful assembly. With regard to meetings for drillings, he said, If the object of the drilling is to secure the attention of the persons drilled to disaffected speeches, and give confidence by an appearance of strength to those willing to join them, that would be illegal; or if they were to say, we will have what we want, whether it be agreeable to law or not, a meeting for that purpose, however it may be masked, if it is really for a purpose of that kind, would be illegal. If the meeting, from its general appearance, and all the accompanying circumstances, is caculated to excite terror, alarm and consternation, it is generally criminal and unlawful.
A question, with regard to the admissibility of evidence, showing previous meetings for the purpose of drilling, arose in Hunt's case, 3 B. and A. 566 (c), which was an indictment containing counts for a conspiracy, unlawful assembly and riot; and in which the jury found the defendants guilty, on the count for an unlawful assembly. . On a motion for a new trial, on the ground that this evidence had been improperly received, the application was rejected. Abbott, C. J., said, “ It was shown that a very considerable part of the persons assembled, or at least a very considerable part of those who came from a distance, went to the place of meeting in bodies, to a certain extent arranged and organized, and with a regularity of step and movement, resembling those of a military march, though less perfect. The effect of such an appearance, and the conclusion to be
(a) Eng. Com. L. Rep. xxv. 423. (b) Id. xiv. 166. (c) Id. v. 377.
drawn from it, were points for the consideration of the jury, and no reasonable person can say, that they were left to the consideration of the jury in a manner less favorable to the defendants than the evidence warranted. And if this appearance was in itself proper for the consideration of the jury, it must have been proper to show to them, that at the very place froin which one of these bodies came, a number of persons had assembled before day-break, and had been formed and instructed to march as soon as there was light enough *for such an operation, [ *825 ] and that some of the persons thus assembled had grossly ill-treated two others, whom they called spies, and had extorted from one of them, at the peril of his life, an oath never to be a King's man again, or to name the name of a King; and that another of the bodies that went to the place of meeting expressed their hatred towards this person by hissing as they passed his doors. These matters were in my opinion, unquestionably competent evidence upon the general character and intention of the meeting.”
Statute 7 Wm. 4 and 1 Vict. c. 87 . 8:26 -violence-degree of
under pretence of legal or right-
834 Robbery attended with violence, &c. 826
mode of putting in fear 835 degree of fear
836 Evidence in cases of robbery : 827 Proof of being put in fear
837 Proof of the goods, &c. taken
injury to the person
837 Proof of the taking
833 felonious intent
fear of injury to reputation 838 from the person
threatening to accuse of an in presence of the owner - 831
abominable crime-statute - 845 against the will of the owner 832
putting in fear must be before Proof of the violence or putting in fear
Robbery from the person, which is a felony at common law, is thus defined :-a felonious taking of money or goods of any value from the person of another, or. in his presence against his will, by violence or putting him in fear. 2 East, P. C. 707 (1).
Where an indictment stated that the prisoner with force of arms, &c. made an assault on W. M., and him the said W. M. then and *there feloniously did rob of, &c., without averring that the act [ *826 ] was committed with “force and violence," or that the party was put in " fear” according to the usual form; Lord Lyndhurst, B., inclined to think the indictinent insufficient, but said he should reserve the point. At the following assizes, Parke, B., stated that his Lordship had conferred
(1) 1 Wheeler's C. C. 420.
with some of the judges, and amongst others with himself, and they were of opinion that as the objection must be supposed to have been taken after verdict, it was unnecessary to decide whether the objection would have been good on demurrer, inasmuch as the omission was cured by the 7 Geo. 4, c. 64, s. 21. Lennox's case, 2 Lew. C.-C. 268.
The 7 and 8 Geo. 4, c. 29, used the words “rob any other person of any chattels, &c."
The new statute merely says “rob any person.”
Statute 7 Wm. 4 and 1 Vict. c. 87.) The 7 Wm. 4 and 1 Vict. c. 87, by which the provisions of the 7 and 8 Geo. 4, c. 39, relating to this offence are repealed, abolishes the punishment of death for simple robbery, and restricts it to cases where the crime is attended with cutting or wounding
Robbery attended with cutting or wounding.) By the 7 Wm. 4 and 1. Vict. c. 87, s. 2, “whosoever shall rob any person, and at the time of, or immediately before, or immediately after such robbery, shall stab, cut, or wound any person, shall be guilty of felony, and being convicted thereof shall suffer death."
This sentence may be recorded under the 4 Geo. 4, ante; p. 224.
The evidence to support an indictment under this section will be the same as that required on an indictment for simple robbery, see post; and in addition it must be proved that the prisoner either immediately before, at the time of, or immediately after the robbery, stabbed, cut, or wounded the prosecutor, as the case may be. With respect to the evidence requisite to sustain the allegation of stabbing, &c., see ante, p. 728. If the prosecutor should fail to prove the stabbing, &c., the prisoner may still be convicted of the robbery, and if the proof of the latter should also fail, the party may be found guilty of an assault under the 7 Wm. 4 and i Vict. c. 85, s. 11, ante, p. 264; see Ellis's case, post, p. 827.
Robbery attended with violence, &c.]. By the 7 Wm. 4 and 1 Vict. c. 87, s. 3," whosoever shall, being armed with any offensive weapon or instrument, rob, or assault with intent to rob any person, or shall, together with one or more person or persons, rob, or assault with intent to rob any person, or shall rob any person, and at the time of or immediately before, or immediately after such robbery, shall beat, strike, or use any other personal violence to any person, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be transported beyond the seas for the term of his or her natural life, or for any ( *827 ] term not less *than fifteen years, or to be imprisoned for any term not exceeding three years.”.
By s. 10, in cases of imprisonment the court may award hard labor, and also solitary confinement not exceeding a month at any one time, or three months in any one year.
The evidence to support an indictment founded on the third section of the above statute will depend upon the particular offence charged; whether it be a robbery, or an assault with intent to rob by a party armed with an offensive weapon; or by two or more persons; or whether such obbery be accompanied by striking or other personal violence. Should
the prosecutor fail to make out the circumstances of aggravation, the prisoner may be convicted of the simple robbery, or if the proof be insufficient to support the latter charge, then of an assault.
The prisoner was charged under the last mentioned section with a robbery. The evidence was that the prisoner committed the offence together with others (who were not apprehended, but it was not so charged in the indictment. On the question whether, in order to bring him within the higher penalty imposed by that section, it ought not to have been so averred; Patteson, J., said, “where several parties are indicted for com-mitting the offence, it is not necessary to aver that they were together ; but if one be indicted alone who committed the act with others, it is proper/ it should be so averred.” Raffety's case, 2 Lew. C. C. 271.
The prisoner was indicted under the same section for a robbery accompanied by personal violence. The jury found him“ guilty of an assault but without any intention to commit any felony.” Park, J., and Alderson, B., held that such special finding did not take the case out of the operation of the 7 Wm. 4 and 1 Vict. c. 85, s. 11, (ante, p. 264) and the prisoner was sentenced under that section to imprisonment with hard labor. Ellis's case, 8 C. and P. 654 (a).
Simple Robbery. By the 7 Wm. 1 and i Vict. c. 87, s. 5, “whosoever shall rob any person (or shall steal any property from the person of another, see as to this, 'title, Larceny, ante, p. 551] shall be liable, at the discretion of the court, to be transported beyond the seas for any term not exceeding fifteen years, nor less than ten years, or to be imprisoned for any term not exceeding three years.”
The provisions of the statute with regard to stealing from the person; assaulting with intent to rob; and demanding property with menaces, or by force, with intent to steal ; the accusing or threatening to accuse of any infamous crime; and the sending of threatening letters demanding money, are all separately noticed under distinct heads.
Evidence in cases of robbery.) On a prosecution for a robbery, the evidence will be, Ist, proof that certain .goods, &c. were taken ; 2d, that they were taken with a felonious intent; 3d, from the person or in the presence of the owner ; 4th, against his will ; 5th, *that they were. [ *828) taken either by violence or by putting the owner in fear.
Proof of the goods, &:c. taken.] It must be proved that some property was taken, for an assault with intent to rob is an offence of a different and inferior nature. 2 East, P. C. 707. But the value of the property is immaterial, a penny, as well as a pound, forcibly extorted, constitutes a robbery, the gist of the offence being the force and terror. 3 Inst. 69; 1 Hale, P. C. 532; 2. East, P. C. 707; 2 Russell, 62. Thus where a man was knocked down and his pockets rifled, but the robbers found nothing, except a slip of paper containing a memorandum, an indictment for robbing him of the paper was held to be maintainable. Bingley's case, coram Gurney, B., 5 C. and P. 602 (b). In the following case it was held that there was no property in the prosecutor so as to support an indictment for robbery. The prisoner was charged with robbing the prose
(a) Eng. Com. L. Rep. xxxiv. 570. (6) Id. xxiv. 474.
cutor of a promissory note. It appeared that the prosecutor had been decoyed by the prisoner into a room for the purpose of extorting money from him. Upon a table covered with black silk were two candlesticks covered also with black, a pair of large horse pistols ready cocked, a tumbler glass filled with gunpowder, a saucer with leaden balls, two knives, one of them a prodigiously large carving knife, their handles wrapped in black crape, pens and inkstand, several sheets of paper, and two ropes. The prisoner, Mrs. Phipoe seizing the carving knise, and threatening to take away the prosecutor's life, the latter was compelled to sign a promissory note for 2000l. upon a stamped paper which had been provided by the prisoner. It was objected that there was no property in the prosecutor, and the point being reserved for the opinion of the judges, they held accordingly. They said that it was essential to larceny, that the property stolen should be of some value ; that the note in this case did not on the face of it import either a general or special property in the prosecutor, and that it was so far from being of any the least value to him, that he had not even the property of the paper on which it was written ; for it appeared that both the paper and ink were the property of Mrs. Phipoe, and the delivery of it by her to him, could not under the circumstances of the case be considered as vesting it in him, but if it had, as it was a property of which he was never, even for an instant, in the peaceable possession, it could not be considered as property taken from his person, and it was well settled that to constitute the crime of robbery, the property must not only be valuable, but it must also be taken from the person and peaceable possession of the owner. Phipoe's case, 2 Leach, 673; 2 East, P. C. 599. See Edward's case, 6 C. and P. 515, 521 (a); post, title Threats, p. 861.
A servant who had received money from his master's customers, was robbed of it in his way home. Upon its being objected that the money could not be laid as the property of the master, Alderson, B., inclined to [ *829] think the objection valid, and would have reserved the *point, but as the grand jury were sitting, the learned baron directed the jury to be discharged, and a new indictment to be preferred, containing a count laying the property in the servant. Rudick's case, 8 C. and P. 237 (b).
Proof of the taking.) In order to constitute a taking, there must be a possession by the robber. Therefore, if a man having a purse fastened to his girdle, is assaulted by a thief, who, in order more readily to get the purse, cuts the girdle, whereby the purse falls to the ground, this is no taking of the purse, for the thief never had it in his possession. i Hale, P. C. 533. But if the thief had taken up the purse from the ground, and afterwards let it fall in the struggle, without taking it up again, it would have been robbery, for it would have been once in his possession. Id. However short the period of possession, it is sufficient. The prisoner taking the prosecutor's purse immediately returned it, saying “ If you value your purse you will please to take it back, and give me the contents of it;" the prosecutor took it back, and the prisoner at that moment was apprehended. The Court (Hotham, B., and Willes, J.,) held, that though the prosecutor did not eventually lose either his purse or his money, yet as the prisoner had in fact demanded the money, and under the impulse of that threat and demand, the property had been once taken from the
(a) Eng. Com. L. Rep. xxv. 518. (b) Id. xxxiv. 368.