« EdellinenJatka »
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 (6).
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. tended 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 girls 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. (6) 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 sinple 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. Č. 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- [ *849 ] 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 prosecutrix 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, I 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.
case, 1 Hale, P. C. 534; 1 Leach, 198,(n.)
ASSAULT WITH INTENT TO ROB.
Statute 7 Wm. 4 and 1 Vict. c. 87, s. 6 - 848 | Proof of the intent to rob
Statute 7 Wm. 4 and 1 Vict. c. 87, s. 6.] Before the 7 and 8 Geo. 4, c. 29, s. 6, the offence of assaulting with intent to rob was provided against by the 1 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 person with intent to rob, shall be guilty of felony, and being convicted thereof, shall (save and except in the cases where a greater punishment is provided by this act, see ante, p. 826) be liable to be imprisoned for any term not exceeding three years.'
Upon an indictment for an assault with intent to rob, the prosecutor must prove, 1, the assault; and 2, the intent of the prisoner to commit a robbery.
Proof of the assault.) The assault will be proved in the same manner as the assault in robbery, only that the completion of the offence, in taking the prosecutor's property from his person or in his presence will be wanting. A question has been raised upon the repealed statutes, whether or not there must be an actual assault upon the same person whom it is the offender's intention to rob. In the construction of the 7 Geo. 2, c. 21, it was decided that the assault must be upon the person intended to be robbed. The prosecutor was riding in a post-chaise, when it was stopped by the prisoner, who, extending his arm towards the post-boy, presented a pistol, swore many bitter oaths with great violence, but did not make any demand of money. He immediately stopped the chaise, when the prisoner turned towards it, but perceiving some one coming up, rode off without speaking. Upon an indictment for assaulting the prosecutor with intent to rob him, Ashurst, J., told the jury that the evidence was not sufficient, that the charge was, not for an assault with intent to rob the postillion, but with an intent to rob the prosecutor in the chaise, and that no such intent appeared. Thomas's case, 1 Leach, 330, 1 East, P.C. 417.
*Proof of the intent to rob.] The intent to rob will be gath- [ *850 ] ered from the general conduct of the prisoner at the time. Menaces, threats, violence, and in short whatever conduct, which, if it had been followed by a taking of property, would have constituted robbery, will in this case be evidence of an intent to rob. The prisoners rushed out of the hedge upon the prosecutor, who was the driver of a return chaisc, as he was passing along the road, and one of them, presenting a pistol, bade him stop, which the boy did, but called out for assistance to some persons whom he had met just before. On this one of the prisoners threatened to blow his brains out if he called out any more, which the prosecutor nevertheless continued to do, and, obtaining assistance, took the men, who had made no deinand of money. They were convicted of an assault with intent to rob, and transported. Trusty's case, 1 East, P. C. 418.
It appears from one case to have been thought that in order to substantiate the fact of the intent to rob, a demand of property was necessary to be proved. Parfait's case, 1 East, P. C. 416. It seems, however, that this decision was founded upon an erroneous view of the then statute, two of the clauses, that respecting assaults to rob, and that respecting demanding money, by threats and menaces, being read as one enactment. 1 East, P. C. 417. Thomas's case, Id. and Trusty's case, Id. 418, also tend to show that the resolution of the court in Parfait's case is erroneous, see also Sharwin's case, 1 East, P. C. 421. The words of the 7 and 8 Geo. 4, c. 20, s. 6, seein to have left no doubt upon the question, the words “ with intent to rob" following immediately after the description of the offence by assaulting, and not being deferred, as in the
7 Geo. 2, c. 21, until after the description of the offence of demanding with menaces; and by the recent statute the two offences are kept distinct, being contained in separate clauses of the act.
Should the proof fail as to the intent to rob, the prisoner may be convicted of an assault under the 7 Wm. 4 and 1 Vict. c. 85, s. 11, ante, p. 264, and see Ellis's case, ante, p. 827.
Statute 7 and 8 Geo. 4, c. 29.] The st. 23 Hen. 8, c. 1, and 1 Ed. 6, c. 12, which related to the offence of sacrilege, or breaking and stealing in a church, were repealed by the 7 and 8 Geo. 4, c. 27.
By 7 and 8 Geo. 4, c. 29, s. 10, “ if any person shall break and [ *851 ] *enter any church or chapel, and steal therein any chattel, or having stolen any chattel in any church or chapel, shall break out of the same, every such offender, being convicted thereof, [shall suffer death as a felon.]”
Now by the 5 and 6 Wm. 4, c. 81, so much of the above section as inflicted the punishment of death, is repealed, and every person convicted of any of the offences therein specified, or of aiding, or abetting, counselling or procuring the commission thereof, shall be liable to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned, with or without hard labor, in the common gaol or house of correction, for any term not exceeding four years.
Upon a prosecution under the 7 and 8 Geo. 4, c. 29, s. 10, the prosecutor must prove, 1, the breaking and entering ; 2, that the building broken was a church or chapel within the statute ; and 3, the stealing of goods in the church or chapel.
Such a breaking and entering, as would constitute a burglary, (see ante, p. 302, 308, will be a breaking and entering within this statute; but it need not be in the night-time. It should be observed, that a breaking and entering, merely with intent to steal, is not made an offence by the statute.
Should the proof fail as to breaking and entering, the prisoner may be convicted of simple larceny. See Nixon's case, post.
Proof that the building is a church or chapel.] It must appear that the building, in which the offence was committed, was a church or chapel. Where the goods stolen had been deposited in the church-tower, which had a separate roof, but no outer door, the only way of going to it being through the body of the church, from which the tower was not separated by a door or partition of any kind; Park, J. was of opinion that this