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where the money was delivered through fear, that was constructive violence. That the principle he had acted upon in such cases was to leave the question to the jury, whether the defendant had, by certain circumstances impressed such a terror on the prosecutor as to render him incapable of resisting the demand? Therefore, where the prosecutor swore that he was under no apprehension at the time, but gave his money only to convict the prisoner, he negatived the robbery. That this was different from Norden's case, (Foster, 129), where there was actual violence; but [ *844] here there was neither actual nor *constructive violence. At a subsequent meeting of the judges, the conviction was held wrong. Reane's case, 2 Leach, 616, 2 East, P. C. 734. The same point was ruled in Fuller's case, Russ. and Ry. 408 (a), where the prosecutor made an appointment to meet the prisoner, and in the meantime procured a constable to attend, who, as soon as the prisoner received the money, apprehended him. The prosecutor stated that he parted with the money in order that he might prosecute the prisoner.

Under the circumstances of the following case, it appears to have been held that the fear was not continuing at the time of the delivery of the money, and that therefore it was no robbery. In consequence of a charge similar to that in the above cases having been made, the prosecutor procured a sum of money to comply with the demand, and prevailed upon a on a friend to accompany him when he went to pay it. His friend (Shelton) advised him not to pay it, but he did pay it. He swore that he was scared at the charge, and that was the reason why he parted with his money. It appeared that after the charge was first made, the prosecutor and one of the prisoners continued eating and drinking together. Shelton confirmed the prisoner's account, and said he appeared quite scared out of his wits. The judges having met to consider this case, a majority of them were of opinion that it was not robbery, though the money was taken in the presence of the prosecutor, and the fear of losing his character was upon him at the time. Most of the majority thought that in order to constitute robbery, the money must be parted with from an immediate apprehension of present danger upon the charge being made, and not, as in this case, after the parties had separated, and the prosecutor had time to deliberate upon it, and apply for assistance, and had applied to a friend, by whom he was advised not to pay it; and who was actually present at the very time when it was paid; all which carried the appearance more of a composition of a prosecution than it did of a robbery, and seemed more like a calculation, whether it were better to lose his money or risk his character. One of the judges, who agreed that it was not robbery, went upon the ground that there was not a continuing fear, such as could operate in constantem virum from the time when the money was demanded till it was paid, for in the interval he could have procured assistance, and had taken advice. The minority, who held the case to be robbery, thought the question concluded by the finding of the jury, that the prosecutor had parted with his money through fear continuing at the time, which fell in with the definition of robbery long ago adopted and acted upon, and they said it would be difficult to draw any other line. That this sort of fear so far differed from cases of mere bodily fear, that it was not likely to be dispelled, as in those cases, by having the opportunity of applying to magistrates or others for their assistance,

(a) 1 Eng. C. C. 408.

for the money was given to prevent the public disclosure of the charge. Jackson's case, 1 East, P. C. Addenda xxi. It is suggested by Mr. East, Id. xxiv. (margin,) whether this case does not in a great measure overrule Hickman's case, (ante, p. 840;) but it is justly observed by an eminent *writer, that the circumstances of the two cases differ material- [*845 ] · ly; that in Hickman's case, the money was given immediately upon the charge being made, and that there was no previous application to any friend or other person from whom advice or assistance might have been procured. 2 Russell, 85.

So much doubt appears to have been entertained with regard to the law, as it is to be gathered from the preceding cases, that a statutory provision was made on the subject. By the 7 and 8 Geo. 4, c. 29, s. 7, it was enacted, that if any person should accuse, or threaten to accuse any other person of any infamous crime, as thereinafter defined, with a view or intent to extort or gain from him, and should by intimidating him by such accusation or threat, extort or gain from him any chattel, money, or valuable security, every such offender should be deemed guilty of robbery, and should be indicted and punished accordingly.

The above section was repealed by the 7 Wm. 4 and 1 Vict. c. 87, which enacts, s. 4, "that whosoever shall accuse or threaten to accuse any person of the abominable crime of buggery committed either with mankind or with beast, or of any assault with intent to commit the said abominable crime, or of any attempt or endeavor to commit the said abominable crime, or of making or offering any solicitation, persuasion, promise or threat to any person, whereby to move or induce such to commit or permit the said abominable crime, with a view or intent in any of the cases aforesaid, to extort or gain from such person, and shall by intimidating such person by such accusation or threat, extort or gain from such person any property, (see post, 860,) 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 term not less than fifteen years, or to be imprisoned for any term not exceeding three years."

Patteson, J., held that a threatening to accuse under the 7 and 8 Geo. 4, c. 29, s. 7, need not be a threat to accuse before a judicial tribunal, a threat to charge before any third person was enough. The learned judge said that the term "accuse" throughout the act meant to charge the prosecutor before any third person; and "threatening to accuse" meant threatening to accuse before any third person. Robinson's case, 2 M. and R. 14; 2 Lew. C. C. 273.

On an indictment under the recent statute for threatening to accuse the prosecutor of an abominable crime, and thereby extorting money; Park, J., (after conferring with Parke, B.,) told the jury that they need not confine themselves to the consideration of the expressions used before the money was given, but might, if those expressions were equivocal, connect with them what was afterwards said by the prisoners when taken into custody. Kain's case, 8 C. and P. 187 (a).

Where the words used by the prisoner were, "If you do not assist me, I will say, you took indecent liberties with me some time ago;" Law, Recorder, held, that they were not sufficient to sustain a count in the in

(a) Eng. Com. L. Rep. xxxiv. 347.

dictment founded on the seventh section of the *recent act (ante, p. 845), as under that clause the threat must be to accuse of an attempt to commit the complete capital offence. Norton's case, 8 C. & P. 671 (a).

By the 7 & 8 Geo. 4, c. 29, s. 7, a party committing the above offence was to be deemed guilty of robbery; the seventh section of the recent statute enacts that the offender shall be guilty of felony.

And semble that now, where money is obtained by any of the threats to accuse specified in that section, the indictment must be on the statute; but where the money is obtained by threats to accuse other than those specified in the act, the indictment may be for robbery, if the party was put in fear, and parted with his property in consequence. Norton's case, supra. In a note to this case the Recorder is stated to have mentioned it to Parke, B., who concurred in the above opinion.

It is no defence to a charge of robbery by threatening to accuse a man of an unnatural crime, that he has in fact been guilty of such crime. Where the prisoner set up that defence, and stated that the prosecutor had voluntarily given him the money not to prosecute him for it; Littledale, J., said, that it was equally a robbery to obtain a man's money by a threat to accuse him of an infamous crime, whether the prosecutor were really guilty or not; as, if he was guilty, the prisoner ought to have prosecuted him for it; and not have extorted money from him; but if the money was given voluntarily without any previous threat, the indictment could not be supported. The jury acquitted the prisoner. Gardner's case, 1 C. and P. 479 (b).

See also, Threats,—Accusing of infamous crimes, post, p. 868.

The following case appears to have been regarded as ranging itself under the same class as the foregoing, but as wanting that species of fear of injury to the reputation which is necessary to constitute robbery. The prosecutrix, a servant maid, was inveigled into a mock-auction, and the door was shut. There were about twenty persons present. Refusing to bid, she was told, "you must bid before you obtain your liberty again." She, however, again refused, and at length, alarmed by their importunities, she attempted to leave the shop. Being prevented, and conceiving that she could not gain her liberty without complying, she did bid, and the lot was knocked down to her. She again attempted to go, but the prisoner, who acted as master of the place, stopped her, and told her, if she had not the money, she must pay half a guinea in part, and leave a bundle she had with her. The prisoner finding she could not comply, said, "then you shall go to Bow-street, and from thence to Newgate, and be there imprisoned until you can raise the money." And he ordered the door to be guarded, and a constable to be sent for. A pretended constable coming in, the prisoner who had kept his hand on the girl's shoulder, said, "take her, constable, take her to Bow-street, and thence to Newgate." The pretended constable said, "unless you give me a shilling, you must go with me." During this conversation, the prisoner again laid one hand on the girl's shoulder, and the other on her bundle, and while he thus held her, she put her hand into her [ *847 ] *pocket, took out a shilling and gave it to the pretended constable, who said, "If Knewland (the prisoner) has a mind to release you it is well, for I have nothing more to do with you," and she was then suf

(a) Eng. Com. L. Rep. xxxiv. 577. (b) Id. xi. 453.

fered to make her escape.

She stated upon oath that she was in bodily fear of going to prison, and that under that fear she parted with the shilling to the constable, as a means of obtaining her liberty; but that she was not impressed by any fear, by the prisoner Knewland laying hold of her shoulder with one hand, and her bundle with the other; for that she only parted with her money to avoid being carried to Bow-street, and thence to Newgate, and not out of fear or apprehension of any other personal force or violence. Upon a case reserved, the judges were of opinion that the circumstances of this case did not amount to robbery. After adverting to the cases of threats to accuse persons of unnatural offences, Mr. Justice Ashurst, delivering the resolution of the judges, thus proceeds: In the present case the threat which the prisoners made was to take the prosecutor to Bow-street, and from thence to Newgate, a species of threat, which, in the opinion of the judges, is not sufficient to raise such a degree of terror in the mind as to constitute the crime of robbery; for it was only a threat to put her into the hands of the law, and an innocent person need not in such circumstances be apprehensive of any danger. She might have known, that having done no wrong, the law, if she had been carried to prison, would have taken her under its protection and set her free. The terror arising from such a source cannot, therefore, be considered of a degree sufficient to induce a person to part with his money. It is the case of a simple duress, for which the party injured may have a civil remedy by action, which could not be, if the fact amounted to felony. As to the circumstances affecting the other prisoner, (Wood, the pretended constable,) it appears that the force which he used against the prosecutrix was merely that of pushing her into the sale-room, and detaining her until she gave the shilling; but as terror is, no less than force, a component part of the complex idea annexed to the term robbery, the crime cannot be complete without it. The judges, therefore, were all of opinion, that however the prisoners might have been guilty of a conspiracy or other misdemeanor, they could not in any way be considered guilty of the crime of robbery. Knewland's case, 2 Leach, 721; 2 East, P. C. 732.

Although this decision, so far as the question of putting in fear is concerned, may, perhaps, be regarded as rightly decided upon the express declaration of the prosecutrix herself, that she parted with the money merely to avoid being carried to Bow-street, and thence to Newgate, yet there are some portions of the opinion of the judges which appear to be at variance with the rules of law respecting robbery. The statement that terror no less than force is a component part of the complex idea annexed to the term robbery, is not in conformity with the various decisions already cited, from which it appears that either violence or putting in fear is sufficient to constitute a robbery. There seems also to be a fallacy in *the reasoning of the court, with regard to threats of imprison- [ *848] ment held out to the prosecutrix. The impression made by such threats upon any person of common experience and knowledge of the world (and such the prosecutrix must be taken to have been) would be, not that the prisoners had in fact any intention of carrying the injured party before a magistrate, or of affording any such opportunity of redress, but that other artifices, (as in the instance of the pretended constable,) would probably be resorted to, in order to extort money. It is difficult to imagine any case in which a party might with more reason apprehend violence and injury, both to the person and to the property, than that in which the pro

secutrix was placed, and it is still more difficult to say, that there was not such violence resorted to, as independently of the question of putting in fear, rendered the act of the prisoners (supposing it to have been done animo furandi, of which there could be little doubt) an act of robbery. In Gascoigne's case, 1 Leach, 230; 2 East, P. C. 709, ante, p. 834, the prisoner not only threatened to carry the prosecutrix to prison, but actually did carry her thither, whence she was in due course discharged, and yet the nature of the threat did not prevent the offence from being considered a robbery. In that case, indeed, some greater degree of personal violence was used, and the money was taken from the prosecutrix's pocket by the prisoner himself, but it is clearly immaterial whether the offender takes the money with his own hand, or whether the party injured delivers it to him, in consequence of his menaces.

Proof of the putting in fear—must be before the taking.] It must appear that the property was taken while the party was under the influence of the fear, for if the property be taken first; and the menaces or threats, inducing the fear, be used afterwards, it is not robbery. The prisoner desired the prosecutor to open a gate for him. While he was so doing, the prisoner took his purse. The prosecutor seeing it in the prisoner's hands, demanded it, when the prisoner answered, "Villain, if thou speakest of this purse, I will pluck thy house over thy ears," &c., and then went away, and because he did not take it with violence, or put the prosecutor in fear, it was ruled to be larceny only, and no robbery, for the words of menace were used after the taking of the purse. Harman's case, 1 Hale, P. C. 534; 1 Leach, 198, (n.)

[ *849]

*ROBBERY.

ASSAULT WITH INTENT TO ROB.

Statute 7 Wm. 4 and 1 Vict. c. 87, s. 6848 | Proof of the intent to rob
Proof of the assault

849

.850

Before the 7 and 8 Geo. intent to rob was provided

Statute 7 Wm. 4 and 1 Vict. c. 87, s. 6.] 4, c. 29, s. 6, the offence of assaulting with against by the 4 Geo. 4, c. 54, s. 5, (repealing the 7 Geo. 2, c. 21.) The 4 Geo. 4, enacted, that if any person should maliciously assault any other person, with intent to rob such other person, he should be adjudged guilty of felony, &c. The enactment in the 7 and 8 Geo. 4, was substantially the same, being "shall assault any other person with intent to rob him."

Now by the 7 Wm. 4 and 1 Vict. c. 87 the 7 and 8 Geo. 4, c. 29, s. 6, is repealed, and it is enacted, s. 6, "that whosoever shall assault any per

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