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it is otherwise where the party robbed delivers money to the thief, though, at the same time, with the intent and power of immediately apprehending him. One Norden, having been informed of several robberies by a highwayman, resolved to apprehend him. For this purpose he put a little money and a pistol into his pocket, and took a chaise. The robber stopped the chaise and demanded money. Norden gave him what money he had, jumped out of the chaise with the pistol in his hand, and with some assistance apprehended the prisoner. The prisoner was convicted of this robbery, and the conviction was approved of by Mr. Justice Foster, who distinguishes it from the former case, on the ground that there was no concert or connexion between Norden and the highwayman. Anon. Foster, 129.
Proof of the violence or putting in fear-violence-degree.] It must be proved that the goods were taken either by violence, or that the owner was put in fear; but either of these facts will be sufficient to render the felonious taking a robbery. 2 East, P. C. 708; 2 Russell, 67. Where [ *833] violence is used, it is not necessary to prove actual fear. "I am very clear," says Mr. Justice Foster, "that the circumstances of actual fear, at the time of the robbery, need not be strictly proved. Suppose the true man is knocked down without any previous warning, to awaken his fears, and lies totally insensible, while the thief rifles his pockets, is not this a robbery?" Foster, 128. And if fear be a necessary ingredient, the law in odium spoliatoris will presume it, where there appears to be so just a ground for it. Id. 2 East, P. C. 711(1).
With regard to the degrees of violence necessary, it has been seen, ante, p. 829, that the sudden taking of a thing unawares from the person, as by snatching any thing from the hand or head, is not sufficient to constitute robbery, unless some injury be done to the person, or unless there be some previous struggle for the possession of the property. In Lapier's case, ante, p. 535, it was held robbery, because an injury was done to the person. 2 East, P. C. 709. A boy was carrying a bundle along the street, when the prisoner ran past him, and snatched it suddenly away, but being pursued, let it fall. Being indicted for robbery, the Court(Hotham, B., and Adair, Serjeant,) said, the evidence in this case does not amount to a robbery; for though he snatched the bundle, it was not with that degree of force and terror that is necessary to constitute this offence. Macauley's case, 1 Leach, 287. And the same has been resolved in several other cases, in which it has appeared that there was no struggle for the property. Baker's case, 1 Leach, 290; Robins's case, Id. (n); Davies's case, Id. (n); Horner's case, Id. 191. (n.)
But where a degree of violence is used sufficient to cause a personal injury, it is robbery; as where, in snatching a diamond pin fastened in a lady's hair, part of the hair was torn away at the same time (2). Moore's case, I Leach, 335, and see Lapier's case, Id. 320, ante, p. 535. A case is said to have been mentioned by Holroyd, J., which occurred at Kendal, and in which the evidence was that a person ran up against another, for the purpose of diverting his attention while he picked his pocket; and the judges held, that the force was sufficient to make it a robbery, it having been used
(1) Commonwealth v. Snelling, 4 Binn. 379. Commonwealth v. Humphries, 7 Mass. 242. Case of Morris, 6 Rogers' Rec. 86.
(2) State v. Trexler, 2 Car. Law Rep. 94.
with that intent. Anon. 1 Lewin, C. C. 300. It appeared in evidence that the prisoner and others, in the streets of Manchester, hung around the prosecutor's person, and rifled him of his watch and money. It did appear that any actual force or menace was used, but they surrounded him so as to render any attempt at resistance hazardous, if not vain. Bayley, J., on the trial of these parties for robbery, said, in order to constitute robbery, there must be either force or menaces. If several persons surround another so as to take away his power of resistance, this is robbery. Hughes's case, 1 Lewin, C. C. 301.
So if there be a struggle between the offender and the owner, for the possession of the property, it will be held to be such a violence as to render the taking robbery. The prisoner was indicted for taking a gentleman's sword from his side, clam et secrete; but, it appearing that the gentleman perceived the prisoner had laid hold of his sword, [ *834 ] and that he himself laid hold of it at the same time and struggled for it, this was adjudged robbery. Davies's case, 2 East, P. C. 709. The prisoner coming up to the prosecutor in the street, laid violent hold of the seals and chains of his watch, and succeeded in pulling it out of his fob. The watch was fastened with a steel chain, which went round his neck, and which prevented the prisoner from immediately taking the watch; but, by pulling, and two or three jerks, he broke the steel chain and made off with the watch. It was objected that this came within the cases as to snatching; but the judges, on a case reserved, were unanimously of opinion that the conviction was right, for that the prisoner could not obtain the watch at once, but had to overcome the resistance the steel chain made, and actual force was used for that purpose. Mason's case, Russ. and Ry. 419 (a).
Proof of violence-under pretence of legal or rightful proceedings.] Violence may be committed as well by actual unlawful force, as under pretence of legal and rightful proceedings. Merriman, carrying his cheeses along the highway in a cart, was stopped by one Hall, who insisted on seizing them for want of a permit (which was found by the jury to be a mere pretence for the purpose of defrauding Merriman, no permit being necessary.) On an altercation, they agreed to go before a magistrate and determine the matter. In the mean time other persons, riotously assembled on account of the dearness of provisions, and in confederacy with Hall for the purpose, carried off the goods in Merriman's absence. It was objected that this was no robbery, there being no force used; but Hewitt, J. overruled the objection, and left it to the jury, who found it robbery, and brought in a verdict for the plaintiff; and, upon a motion for a new trial in K. B., the Court held that the verdict was right. Merriman v. Hundred of Chippenham, 2 East, P. C. 709.
The prosecutrix was brought before a magistrate by the prisoner, into whose custody she had been delivered by a headborough, on a charge of assault. The magistrate recommended the case to be made up. The prisoner, (who was not a peace officer), then took her to a public house, treated her very ill, and finally handcuffed and forced her into a coach. He then put a handkerchief into her mouth, and forcibly took from her a shilling, which she had previously offered him, if he would wait till her hus
(a) 1 Eng. C. C. 419.
band came. The prisoner then put his hand in her pocket, and took out three shillings. Having been indicted for this as a robbery, Nares, J., said, that, in order to commit the crime of robbery, it was not necessary the violence used to obtain the property should be by the common modes of putting a pistol to the head, or a dagger to the breast: that a violence, though used under a colorable and specious pretence of law or of doing justice, was sufficient, if the real intention was to rob; and he left the case to the jury, that if they thought the prisoner had, when he forced the prosecutrix into the coach, a felonious intent of taking her money, and that [*835 ] he made use of the *violence of the handcuffs as a means to prevent her making a resistance, and took the money with a felonious intent, they should find him guilty. The jury having found accordingly, the judges, upon a case reserved, were unanimously of opinion that, as it was found by the verdict that the prisoner had an original intention to take the money, and had made use of violence, though under the sanction and pretence of law, for the purpose of obtaining it, the offence he had committed was clearly a robbery. Gascoigne's case, 1 Leach, 280; 2 East, P. C. 709.
Proof of putting in fear-mode of putting in fear.] If there has not been such violence used, as to raise the offence from that of simple larceny to that of robbery, the prosecutor must show that he was put in fear a fear of injury either to his person, his property, or his reputation.
In order to show a putting in fear, it is not necessary to prove that menaces or threats of violence were made use of by the offender. For instance, under pretence of begging, the prisoner may put the prosecutor in fear. The law (says Mr. Justice Willes), will not suffer its object to be evaded by an ambiguity of expression; for, if a man, animo furandi, "Give me your money;" says "lend me your money;" "make me a present of your money;" or words of the like import, they are equivalent to the most positive order or demand; and if any thing be obtained in consequence, it will form the first ingredient in the crime of robbery. Donnally's case, 1 Leach, 196. During the riots in London, in 1780, a boy with a cockade in his hat, knocked violently at the prosecutor's door, and on his opening it, said, "God bless your honor, remember the poor mob." The prosecutor told him to go along; upon which he said he would go and fetch his captain. He went, and soon after the mob came, to the number of 100, armed with sticks, and headed by the prisoner on horseback, his horse led by the boy. The by-standers said, "You must give them money." The boy said, "Now I have brought my captain ;" and some of the mob said, "God bless this gentleman, he is always generous." The prosecutor asked the prisoner "how much ;" and he answered "half-a-crown;" on which the prosecutor, who had before intended to give only a shilling, gave the prisoner half-a-crown, and the mob giving three cheers, went to the next house. This was held to be robbery, by Nares, J., and Buller, J., at the Old Bailey. Taplin's case, 2 East, P. C. 712.
There may be a putting in fear where the property is taken under color of regular or legal proceedings, as well as in cases where it is taken by actual violence. See the cases cited ante, p. 834.
So there may be a putting in fear, where the robbery is effected under color of a purchase. Thus if a person, by force or threats, compel
another to give him goods, and by way of color oblige him to take less than the value, this is robbery. As where the prisoner took a bushel and a half of wheat, worth 8s., and forced the owner to take 13d. [*836 ] for it, threatening to kill her if she refused, it was clearly held by all the judges to be a robbery. Simon's case, 2 East, P. C. 712. Again, where the prisoner and a great mob came to the prosecutor, who had some corn, and one of them said, if he would not sell, they were going to take it away; and the prisoner said they would give him 30s. a load, and if he would not accept that, they would take the corn away; upon which the prisoner sold it for 30s,, though it was worth 38s., this was held to be robbery. Spencer's case, 2 East, P. C. 712.
In these cases the amount of the money may raise a question for the jury, whether or not the taking was felonious; for, though there may be a putting in fear, yet if in fact the party had not the animus furandi, it is no felony. A traveler met a fisherman with fish, who refused to sell him any; and he, by force and putting in fear, took away some of his fish, and threw him money much above the value of it. Being convicted of robbery, judgment was respited, because of the doubt whether the intent was felonious. The Fisherman's case, 2 East, P. C. 661. It has been observed, that this was properly a question for the jury to say whether, from the circumstance of the party's offering the full value, his intention was not fraudulent, and consequently not felonious. 2 East, P. C. 662. If the original taking was felonious, the payment would make no distinction.
One of the most common modes of effecting a robbery is by menaces and threats. These are said to be a constructive violence, and as such sufficient to render the felonious taking of goods from the person, robbery. But it is not every species of threat that will be accounted sufficient for this purpose. The distinction is well stated by a writer on the criminal law of Scotland, which, in this respect, corresponds with our own. If, says Mr. Alison, the threat be of instant, or near and personal danger, as if matches be exhibited, by which it is proposed immediately to set fire to the house, or cords be produced for binding the person, preparatory to dragging him on a false charge to gaol, there seems no difference between such a case, and the extortion of money by the menaces of immediate death. But if the threat be of a future or contingent danger, and such as by the interposition of law, or by other means may be averted, the crime is not to be considered as robbery, but as oppression, which is a crime sui generis; more especially, if in consequence of such threats, the money be delivered not immediately, but ex intervallo, as by sending it by letter, placing it under a stone designated by the criminal, or the like. In such cases the crime is not considered as robbery, any more than if the money had been obtained under the terror of an incendiary letter. Alison, Princ. Crim. Law of Scotl. 231. See Jackson's case, 1 East, P. C. Addenda xxi. post, 844.
Proof of putting in fear-the degree of fear.] It is a question for the jury, whether the circumstances accompanying the commission of the offence were such as reasonably to create fear in the *breast of [*837 ] the party assaulted; and it can seldom happen that such a presumption may not properly be made. It is not, says Willes, J., necessary that there should be actual danger, for a robbery may be committed' without
using an offensive weapon, as by using a tinder-box, or candlestick, in-
In Jackson's case, 1 East, P. C. Addenda, xxi. post, p. 844, it seems to have been considered that the fear must be of that description which will operate in constantem virum. That case, however, was one of a peculiar nature, and it certainly cannot be required, in order to constitute a robbery, in every case, that the terror impressed should be that of which a man of constancy and courage would be sensible. It has been well remarked, that in estimating the degree of violence which will be held sufficient to support a charge of robbery, regard is to be had to the age, sex, and situation of the party assaulted, it being justly deemed that a much smaller degree of threats and violence will be sufficient to effect the spoliation from a woman or an infirm person, in a remote situation, than from a young or robust man in a frequented spot. Alison, Princ. Crim. Law of Scotl. 229; Burnett, 146.
Proof of being put in fear-injury to the person.] Proof of such circumstances as may reasonably induce a fear of personal injury, will be sufficient to support the charge of robbery. It would not be sufficient to show in answer, that there was no real danger, as that the supposed pistol was in fact a candlestick, see supra: in short, danger to the person may be apprehended from every assault with intent to rob, and a jury would be justified in presuming that the party assaulted was under the influence of fear, with regard to her personal safety. It seems also, that fear of violence to the person of the child of the party, whose property is demanded, is regarded in the same light as fear of violence to his own person. Hotham, B., in Donnally's case, 2 East, P. C. 718, stated, that [*838] *with regard to the case put in argument, if a man walking with his child, and delivering his money to another, upon a threat, that unless he did so, he would destroy the child, he had no doubt but that it was suf ficient to constitute a robbery. So in Reane's case, 2 East, P. C. 735, Eyre, C. J., observed, that he saw no sensible distinction between a personal violence to the party himself, and the case put by one of the judges, of a man holding another's child over a river, and threatening to throw it in, unless he gave him money.