827

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 committing 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. case, 8 C. and P. 654 (a).

Ellis's

Simple Robbery.] By the 7 Wm. 1 and 1 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, 1st, 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. perty is immaterial, a penny, as well as a pound, forcibly extorted, constiBut the value of the protutes 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. (b) 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 knife, 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. 1 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.

prosecutor by the prisoner, it was in strictness of law a sufficient taking to complete the offence, although the prisoner's possession had.continued for an instant only. Peat's case, 1 Leach, 228; 2 East, P. C. 557. See Lapier's case, 1 Leach, 326, ante, p. 535. It has been observed with regard to cases of this description, that though it was formerly held that a sudden taking or snatching of any property from a person unawares was sufficient to constitute robbery, the contrary doctrine appears to be now established. (See Gnosil's case, 1 C. and P. 304 (a),) and that no taking by violence will at the present day be considered as sufficient to constitute robbery, unless some injury be done to the person (as in Lapier's case, ante, p. 535,) or unless there be some previous struggle for the possession of the property, or some force used to obtain it. 2 Russell, 63, vide post.

Proof of the taking-felonious intent.] The robbery must be animo furandi, with a felonious intent to appropriate the goods to the offender's own use. And there must be a felonious intent with regard to the goods charged in the indictment, it is not enough that the prisoner had at the same time an intent to steal other goods. A. assaulted B. on the highway with a felonious intent, and searched his pockets for money, but finding none, pulled off the bridle of B.'s horse, and threw that and some bread which B. had in paniers about the highway, but did not take any thing from B. Upon a conference of all the judges, this was resolved to be no robbery. Anon. 2 East, P. C. 662.

Though the party charged take the goods with violence and menaces, yet if it be under a bona fide claim, it is not robbery. The *pri- [ *830 ] soner had set wires in which game was caught. The game-keeper finding them, was carrying them away when the prisoner stopped him, and desired him to give them up. The gamekeeper refused, upon which the prisoner lifting up a large stick, threatened to beat out the keeper's brains if he did not deliver them. The keeper fearing violence delivered them. Upon an indictment for robbery, Vaughan, B., said, "I shall leave it to the jury to say, whether the prisoner acted upon an impression, that the wires and pheasant were his own property, for, however he might be liable to penalties for having them in his possession, yet if the jury think that he took them under a bona fide impression, that he was only getting back the possession of his own property, there was no animus furandi and the prosecution must fail." The prisoner was acquitted. Hall's case, 3 C. and P. 409 (b).

It sometimes happens that the original assault is not made with the particular felonious intent of robbing the party of the property subsequently taken; but if the intent arises before the property taken, it is sufficient; as where money, offered to a person endeavoring to commit a rape, is taken by him. The prisoner assaulted a woman, with intent to ravish her, and she without any demand made by him, offered him money, which he took, and put into his pocket, but continued to treat the woman with violence in order to effect his original purpose, till he was interrupted. A majority of the judges held this to be robbery, on the ground that the woman, from the violence and terror occasioned by the prisoner's behavior, and to redeem her chastity, offered the money, which, it was clear, she would not have done voluntarily, and that the prisoner, by taking it, de

(a) Eng. Com. L. Rep. xi. 400. (b) Id. xiv. 337.

rived an advantage to himself from his felonious conduct, though bis original attempt was to commit a rape. Blackham's case, 2 East, P. C.

711.

Where several persons went out at night for the purpose of poaching, and encountering a gamekeeper, assaulted him, and after beating him severely, left him, when one of them, named Williams, returned and robbed him; on an indictment against all for robbery, Park, J., said, it appears that Williams alone is guilty of this robbery. There was no common intent to steal the keeper's property. They went out with a common intent to kill game, and perhaps to resist the keepers; but the whole intention of stealing the property is confined to Williams alone. Hawkins's case, 3 C. and P. 392 (a).:

The question of the animus furandi often arises in cases where, after à quarrel and assault, part of the property of some of the parties engaged in the transaction has been carried away. The question in these cases is, whether the articles were taken in frolic, or from accident, or from malice, but not animo furandi. It is said, by a writer on the criminal law of Scotland, that it behoves prosecutors to be rigidly on their guard against such perversions of the real transaction which has occurred, and to endeavor to restrict charges of this serious description to cases of real felonious depredation.. Alison, Princ. Crim. Law of Scotland, 238. Several cases, to illustrate this, are mentioned by Mr. Alison. A scuffle took [*831] *place on the high road, between the prosecutor and the prisoner; in the course of which, the former was deprived of a ruling measure, his hat, and a quantity of articles out of his pockets, which. were afterwards found by the road-side; but as it turned out, that he was tipsey at the time, and the articles might have been lost in the struggle, without any intent of felonious appropriation on the prisoner's part, he was acquitted. Bruce's case, Alison, Prin. Crim. Law of Scot. 358. But, continues Mr. Alison, it may happen that an assault is commenced from some other motive, and in the course of it a depredation, done evidently lucri causa, is committed, suggested perhaps by the unforseen exposure of some valuable property, or the defenceless condition to which the owner is reduced in the course of the affray. In such a case it is not the less robbery that the intention to appropriate arose after the assault. The prisoner, from malice, lay in wait, and assaulted the witness; a scuffle ensued, during which the witness lost a bundle, which he never recovered. The court laid it down, that if the intention of depredation existed at the inoment of the taking, the offence was robbery, though the assault commenced from a different motive; but the jury doubting the evidence, acquitted of the robbery, and convicted only of the assault. Young's case, Alison, 239.

Proof of the taking from the person.] It is not necessary that the goods should actually be taken from off the person of the prosecutor: if they are in his persona! custody, and are taken in his presence it is sufficient. But it is otherwise where they are in the personal custody of a third person. The two prisoners were indicted for assaulting the prosecutor, and robbing him of a bundle. It appeared that the prosecutor had the bundle in his own personal custody, in a beer-shop, and when he came out,

(a) Eng. Com. L. Rep. xiv. 365.

gave it to his brother, who was with him, to carry it for him. While on the road, the prisoners assaulted the prosecutor; upon which, his brother laid down the bundle in the road and ran to his assistance. One of the prisoners then took up the bundle, and made off with it. Vaughan, B., intimated an opinion, that the indictment was not maintainable, as the bundle was in the possession of another person at the time of the assault committed. Highway robbery was the felonious taking of the property of another by violence, against his will, either from his person or in his presence. The bundle, in this case, was not in the prosecutor's possession. If the prisoners intended to take the bundle, why did they assault the prosecutor, and not the person who had it? The prisoners were convicted of simple larceny. Fallow's case, 5 C. and P. 508 (a).

Proof of the taking—in presence of the owner.] The taking need not be by the immediate delivery of the party to the offender, or immediately from the person of the party robbed; it is sufficient if it be in his presence (1). The instances given by Lord Hale are, where a carrier is driving his pack-horses, and the thief takes his horse or cuts his pack, and takes away the goods; or where a thief *comes into the presence of A., [*832] and with violence, and putting A. in fear, drives away his horse, cattle, or sheep. 2 Hale, P. C. 533. But it must appear in such cases, that the goods were taken in the presence of the prosecutor. Thus where thieves struck money out of the owner's hand, and by menaces drove him away, to prevent his taking it up again, and then took it up themselves; these facts being stated in a special verdict, the court said that they could not intend that the thieves took up the money in the sight or presence of the owner, and that, as the striking of the money out of the hand was without putting the owner in fear, there was no robbery. Francis's case, 2 Str. 1015, Com. Rep. 478, 2 East, P. C. 708. And the same was resolved in another case, with the concurrence of all the judges. Grey's case, 2 East, P. C. 708. Where robbers, by putting in fear, made a wagoner drive his wagon from the highway in the day-time, but did not take the goods till night; some held it to be a robbery from the first force, but others considered that the wagoner's possession continued till the goods were actually taken, unless the wagon were driven away by the thieves themselves. 2 East, P. C. 707; 2 Russell, 66.

Proof of the taking-against the will of the owner.] It must appear that the taking was against the will of the owner. Several persons conspired to obtain for themselves the rewards given by statute for apprehending robbers on the highway. The robbery was to be effected upon Salmon, one of the confederates, by Blee, another of the confederates, and two strangers procured by Blee. It was expressly found that Salmon consented to part with his goods under pretence of a robbery, and that, for that purpose, he went to a high-way, at Depford, where the colorable robbery took place. The judges were of opinion that this did not amount to robbery in any of the prisoners, because Salmon's property was not taken from him against his will. M'Daniel's case, Fost. 121, 128. But

(1) As if by intimidation he is compelled to open his desk, or throw down his purse, and then the money is taken in his presence. U. S. v. Jones, 3 Wash. C. C. Rep. 209.

(a) Eng. Com. L. Rep. xxiv. 431.