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valuable security”] of the monies, goods, and chattels of the said W. T., from the person and against the will of the said W. T., then and there feloniously and violently did steal, take, and carry away; against the peace of our lord the king, his crown and dignity. C. C. Č. 431. If the indictment charge the prisoner with having robbed the prosecutor of bank notes or other valuable security, it may be prudent to conclude "against the form of the statute," &c. See ante, p. 288.

Where the indictment stated the robbery to have been in a field near the highway, and it appeared in evidence that it was hot near the highway, the judges held this to be immaterial; for highway robbery was then (as it is now) punishable with death, whether committed near the highway or not. R. v. Thomas Wardle, R. & R. 9. So in R. v. Pye, R. & R. 9. n. the prisoner was convicted upon an indictment, which charged him with robbing Robert Fernyough, in the dwelling-house of Aaron Wildey; the fact was committed in a house, but it did not appear who was the occupier of it: and the judges held the conviction to be correct; for whether the robbery were committed in a house or not, was wholly immaterial. The same point was decided in R. v. Susannah Johnstone, R. & R. 10. n. It is much better, however, not to state the particular place where the robbery was committed; the county laid as special venue, is quite sufficient.

Evidence.

To maintain this indictment, the prosecutor must prove :1. The force or violence used by the prisoner, in taking from him, or compelling him to deliver up, the property in question. Where the prisoner laid violent hold of the seals and chain of the prosecutor's watch, and succeeded in pulling the watch out of his fob; the watch, however, being secured by a steel chain which went round the prosecutor's neck, prevented the prisoner from immediately taking it; but by pulling, and by two or three jerks, he broke the steel chain, and then ran off with the watch: Mr. Justice Park, before whom the prisoner was tried, held this to be sufficient violence to constitute the crime of robbery; that although there was no actual injury to the person, yet as force was necessary to separate the thing stolen from the person, it was not like the cases of snatching, &c. which have been holden not to be robbery and the case being afterwards referred to the judges for their opinion, whether there was sufficient violence in this case to constitute robbery, or whether it did not amount merely to a stealing from the person, they were unanimously of opinion that the conviction was right; for the prisoner could not obtain the watch at once, but had to

overcome the resistance of the steel chain by actual force. R. v. George Mason, R. & R. 419. But where it appeared that the prisoner caught hold of the prosecutor's watch chain, and jerked his watch from his pocket with considerable force, upon which a scuffle ensued and the prisoner was secured; Garrow, B., held that the force used to obtain the watch did not make the offence amount to robbery; nor did the force used afterwards in the scuffle, for the force &c. necessary to constitute robbery must be either immediately before or at the time of the larceny, and not after it. R. v. Gnosil, 1 Car. & P. 304.

But actual force is not essentially necessary to constitute robbery; if by the use of threats, sufficient to overcome a mind of ordinary firmness, a man be induced to part with his property to another who has no pretence or claim of right to it, it is as much a robbery as if it were obtained by actual violence. Therefore where a mob came to the prosecutor's house, and the prisoners, who were amongst them, advised him to give them something to get rid of them and prevent mischief, and they obtained money from him by these means the prisoners being indicted for this, as for a robbery, J. Parke, J. (after consulting with Vaughan, B. and Alderson, J.) admitted evidence of the acts of the mob at other places, both before and after on the same day, to shew that the advice of the prisoners was not bonâ fide, but in reality a mere mode of robbing the prosecutor. R. v. Winkworth and others, 4 Car. & P. 392. So it has been holden that obtaining money from a man, by threatening to charge him with unnatural practices, is robbery, whether the threats be accompanied with any constraint of his person, R. v. Cannon and Coddington, R. & R. 146, or not, R. v. James Egerton, R. & R. 375; and although he gave up the property, not from an apprehension of danger to his person, nor of prosecution or punishment, but from a fear of losing his character or situation, by having so abominable an offence imputed to him. Id. And now, by stat. 7 & 8 Geo. 4. c. 29. c. 7. (supra), if any person shall accuse or threaten to accuse any other person of any infamous crime as thereinafter defined (that is to say,)" the abominable crime of buggery committed either with mankind or with beast," or an " assault with intent to commit the said abominable crime," or any "attempt or endeavour to commit the said abominable

crime," or any "solicitation, persuasion, promise or threat offered or made to any person, whereby to move or induce such person to commit the said abominable crime," Id. s. 9. see post, p. 299, "with a view or intent to extort or gain from him, and shall, by intimidating him with such accusation or threat, extort or gain from him any chattel, money, or valu,

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able security every such offender shall be deemed guilty of robbery, and shall be indicted and punished accordingly.” This is merely declaratory of what the law was previously: before the statute, as now, to constitute robbery in such case, the property must have been extorted or gained from the party by intimidating him by such accusation or threat. And therefore, in a case prior to the passing of this act, where it appeared that the property was parted with upon a threat of this kind, not from any fear of loss of character, &c., but for the mere purpose of detecting and prosecuting the offender, the judges held that the taking did not amount to robbery. R. v. John Fuller, R. & R. 408. And whether the party thus robbed, be guilty or innocent of the offence thus imputed to him, is immaterial. Per Littledale, J., in R. v. Gardner, 1 Car. & P. 479. But where money was thus obtained from a wife, by threatening to accuse her husband of such an offence, Littledale, J., held it not to be a robbery within the meaning of the statute. R. v. Edwards and Warren, 5 Car. & P. 518.

2. A larceny of the property stated in the indictment, or some of it, as directed ante, p. 270, &c.—Where a poacher set wires in a manor to catch game, and the gamekeeper finding them, took them and a pheasant which had been caught in one of them into his possession; the prisoner demanded the wires and pheasant from the gamekeeper, who refused to give them up; but the prisoner lifting up a large stick, and threatening to beat the gamekeeper's brains out if he did not, the latter, fearing violence, gave them up: the prisoner being indicted for this as a robbery, Vaughan, B., held that if he acted upon the impression that the wires and pheasant were his property, there being in that case no animus furandi, the prisoner could not be convicted; and the jury being of that opinion, found him not guilty. R. v. Hall, 3 Car. & P. 409. It must also be a larceny from the person; see post, p. 295. And where, upon a trial for robbery, it appeared that the prosecutor and another being in company, the other carrying the prosecutor's bundle, the prisoners with great violence attacked the prosecutor, upon which his companion threw down the bundle and ran to his assistance, and one of the prisoners then took up the bundle and ran off with it: Vaughan, B., is reported to have holden that this was not robbery, as the bundle when taken was not in the prosecutor's possession. R. v. Fallows and Saxton, 5 Car. & P. 508. sed qu. As to the goods stolen,-where the prisoners attacked the prosecutor, but the only thing he had about him was a piece of paper containing a memorandum of money that a person owed him, Gurney, B., held it sufficient to constitute robbery. R. v. Bingley and Law, 5 Car. & P.

602. Where a gang of poachers, consisting of the prisoners and one Williams, attacked a gamekeeper, beat him and left him senseless on the ground, and then went away; but Williams returned, and whilst the gamekeeper was insensible took from him his gun, pocket-book and money: Park, J., held that this was robbery in Williams only. R. v. Hawkins and others, 3 Car. & P. 392. Where a man was robbed, and died before the trial of the person charged with the robbery, Bolland, B., refused to receive his dying declarations respecting the robbery, holding that such declarations are evidence only in cases where the death of the party is the subject of the inquiry. R. v. Lloyd, Williams and Roberts, 4 Car. & P. 233.

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2. Indictment for Stealing from the Person.

BERKSHIRE, to wit: The jurors for our lord the king upon their oath present, that A. B., late of the parish of in the county aforesaid, labourer, on the third day of November, in the fifth year of the reign of our sovereign lord William the Fourth, by the grace of God of the united kingdom of Great Britain and Ireland king, defender of the faith, with force and arms, at the parish aforesaid, in the county aforesaid, ten pieces of the current gold coin of the realm, called sovereigns, of the value of ten pounds, and one silver watch of the value of five pounds ["chattel, money, or valuable security"], of the monies, goods, and chattels of T. F., from the person of the said T. F. then and there feloniously did steal, take, and carry away against the form of the statute in such case made and provided, and against the peace of our lord the king, his crown and dignity. C. C. C. 246. If bank notes or other valuable security be stolen, the indictment should conclude, against the form of the statute, &c. See R. v. Pearson, ante, p. 288.

Evidence.

To maintain this indictment, the prosecutor must prove:1. A larceny of the property stated in the indictment, or some of it, as directed, ante, p. 270, &c. ; except that the taking must be actual, and not merely constructive; and the carrying away must be, not that mere removal of the property which is sufficient in the case of simple larceny, but an actual severance of it from the person of the prosecutor. Where it appeared that the prisoner drew a pocket-book out of an inside breast pocket of a coat the prosecutor had on him; it was drawn out about an inch above the top of the pocket; but the prosecutor suddenly putting his hand up, the prisoner let go the book, whilst it was still about the person of the

prosecutor, and the book fell back again into the pocket: six of the judges held that this, although a sufficient asporta· tion to constitute a simple larceny, was not sufficient to warrant a conviction of stealing from the person, because from first to last the book remained about the person of the prosecutor; four of the judges were of a different opinion. R. v. Thompson, R. & M. 78.

It is immaterial whether the offence be committed by stealth or by force. If the facts indeed clearly amount to a robbery, the prisoner should, no doubt, be prosecuted for that offence; but if it be doubtful whether the force used be such as is sufficient to constitute robbery, it is better to indict him for this offence, as it has been decided that upon an indictment for stealing from the person, the prisoner may be convicted, although the facts proved amount in law to a robbery. R. v. Joseph Pearce, R. & R. 174. R. v. Charles Robinson and another, R. & R. 321.

2. It must appear that the property was in the personal possession of the prosecutor, at the time it was stolen. And where money has been obtained from a person by means of any pretended het, or other fraudulent artifice of that kind, the indictment has generally been for stealing from the person. See R. v. Robson, Gill, Trewster and Nicholson, ante, p. 273. Whether a taking, not actually from the person of the prosecutor, but in his presence, would be sufficient in this case, as in the case of robbery, has never, I believe, been decided.

3. Indictment for an Assault with intent to rob.

BERKSHIRE, to wit: The jurors for our lord the king upon their oath present, that A. B., late of the parish of in the county aforesaid, labourer, on the third day of November, in the fifth year of the reign of our sovereign lord William the Fourth, by the grace of God of the united kingdom of Great Britain and Ireland king, defender of the faith, with force and arms, at the parish aforesaid in the county aforesaid, in and upon one W. T., in the peace of God and of our said lord the king then and there being, feloniously did make an assault, with intent then and there the monies, goods, and chattels of the said W. T., from the person and against the will of the said W. T., then and there feloniously and violently to steal, take, and carry away: against the form of the statute in that case made and provided, and against the peace of our lord the king, his crown and dignity.

A count for this offence cannot be joined with a count for robbery, in the same indictment; or if it be, the court will put

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