that the violence with which the prisoner detained him in the street, had put him in fear for the safety of his person.

Robert Harrold was afterwards convicted for a similar robbery, 0. B. June 1778.

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The same question was afterwards most deliberately considered in the case of James Donolly, who was tried at the O. B. February Sess. 1779, for a highway robbery on the person of the Hon. C. Fielding. It appeared that on the 18th of January 1779, the prosecutor, a young gentleman, was passing through Soho Square between six and seven o'clock in the evening, when he met the prisoner, whom he had never seen before. The prisoner accosted him and desired that he would give him a present. The prosecutor asked for what? The prisoner answered, had better you comply, or I will take you before a magistrate, and accuse you of an attempt to commit an unnatural crime." The prosecutor then gave him half-a-guinea, which the prisoner said was not sufficient; but the prosecutor had no more in his pocket. On the 20th of January, about four o'clock in the evening, the prosecutor again met the prisoner in Oxford Street, who made use of the same threats as before, telling the prosecutor that he knew what passed in Soho-Square, and unless he would give him more money, he would take him before a magistrate, and accuse him of the same attempt; adding, that it would go hard with him, unless he could prove an alibi. The prosecutor then went into an adjoining shop, whither the prisoner followed him, and staid at the outside of the door. The prosecutor took a guinea out of his pocket and gave it to the shopkeeper, desiring him to give it to the man at the door, which was done; and the prisoner then departed. The prosecutor then deposed that he was exceedingly alarmed on both occasions, and under that alarm gave the money. That he was not aware what were the consequences of such a charge, but apprehended it might cost him his life. The jury were desired to consider, 1st, whether, upon the evidence, they were satisfied that the prosecutor delivered his money through fear and under an apprehension that his life was in danger? or 2dly, if they did not think that the prosecutor apprehended his life was in danger, whether the money were not obtained by means of the prisoner's threats, and against the will of the prosecutor? For if it were, even in that case, though he were not in fear of his life, the crime would amount to robbery. The jury found the prisoner guilty; and said they were satisfied that the prosecutor delivered his money through fear and under an apprehension that his life was in danger.

There being some difference of opinion among the judges on this case, they directed it to be argued before them, which was done on 29th April 1779, at Lord C. J. De Grey's house, present all the judges; when, after very full consideration, they at length all agreed that the case amounted to robbery.

In the May Sess. following, Willes J. in giving judgment, (after noticing the definition of robbery by Ld. Hale and others to the same effect), observed that the following ingredients were necessary to constitute that offence: 1. A felonious intent, or animus furandi. 2. Some degree of violence or putting in fear. 3. A taking from the person of another. He observed that he should confine himself to shew that the prisoner's offence came within the

above description, as the judges did not mean to draw the line as to what should or should not constitute robbery; but that the facts in this case warranted them in saying; as to the first point, that there was a felonious intention in the prisoner to rob the prosecutor. Upon the second point, that the putting in fear was not necessary to be laid in the indictment; so that the fact were charged to be done violently and against the will of the party. Nor was the circumstance of actual fear necessary to be proved; but that the law, in odium spoliatoris, would presume it. In like manner it had been often holden that actual violence was not necessary, but that constructive violence was sufficient: for where such a terror was impressed on the mind as did not leave the party a free agent; and in order to get rid of that terror, he delivered his money, it was robbery. It was also clear that no actual danger was necessary; for a man might commit a robbery without having any offensive weapon; and though a tinder-box or candlestick were used. For when a villain came and demanded a man's money, no one knew to what length he would proceed. That here the situation of the prosecutor was that of a young gentleman accosted at night in the street by a stranger, whom he had never before seen, and must have suspected to be a villain, who demanded a present. Even that seemed sufficient; but the stranger went on and told him that he had better comply, &c. That was a threat of a personal injury, for he had every thing to fear, in being dragged through the streets as a culprit charged with an unnatural crime. That, therefore, was a reasonable fear; which might operate in constantem, as well as in meticulosum virum. It had, he said, been urged on hehalf of the prisoner, that this was a fraudulent extorting, and not a taking by violence. But in many cases, fraud would supply the want of violence; as in the case of burglary, where breaking was necessary to be laid in the indictment, and yet getting admission into a house under colour of law or pretence of taking a lodging or business had been often holden sufficient evidence of the breaking into the house. But the Judges, he observed, did not entirely determine this case on that ground, but were of opinion that there was proof of a constructive violence, which they thought was sufficient. As to the third point, that there was clearly a taking from the person; though a taking in the presence of the party would have been sufficient. As to a taking by the collar or arm, all the Judges, he said, held that that did not make any material distinction, but that sufficient was proved in this case for the jury to find the prisoner guilty of robbery.

In the October sessions following, John Staples was convicted of a similar offence, and executed.

Daniel Hickman was indicted for robbing John Millard in St. James's Palace of two guineas. He obtained the money from the prosecutor by charging him with a similar crime as in the foregoing cases; and by threatening that if he did not make him satisfaction he would bring a serjeant and a file of men to take him up before a magistrate. The prosecutor swore that he parted with his money for fear of losing his character, and that he had no other fear. The jury found the prisoner guilty: but as some on the bench thought that this case differed from that of Donolly, it was reserved for the opinion of the judges; who in November 1783

The putting in

fear need not be laid in the in

dictment so that the fact be charged to be done violently and against the will of the party.

Staples' case,

O.B. 1779.

Hickman's case,

O. B.July 1783. 2 East s P. C. 728.

It is robbery to extort money from a person by threatening to charge him with an un

natural crime;

though he

parted with his money only from fear for his

character and from no other fear.

1 Leach, 279.

were all of opinion that it was robbery. Ashhurst J. afterwards delivered their opinion; that this did not materially differ from the case of Donolly; for that the true definition of robbery is the stealing or taking from the person or in his presence property of any amount, with such a degree of force or terror as to induce the party unwillingly to part with his property: and that whether O.B. Feb. 1784. the terror arose from real or expected violence to the person, or from a sense of injury to the character, the law made no kind of difference for to most men the idea of losing their fame and reputation was equally if not more terrific than the dread of personal injury. That the principal ingredient in robbery was a man's being forced to part with his property. And that the judges were unanimously of opinion, that upon the principles of law and the authority of former decisions, a threat to accuse a man of having committed the greatest of all crimes was a sufficient force to constitute the crime of robbery by putting in fear.

R. v. Jackson and Shipley, 1 East's P. C.

Add. XXI.

R. v. J. Astley, and E. Astley, Stafford Sum. Ass. 1792. cor. Grose J.

2 East's P. C. 729.

MS. C. C. R. The prisoners threatened to bring a mob

But in the case of Jackson and Shipley, Nottingham Spr. Ass. 1802, before Mr. Baron Graham, it was decided on a case reserved, that to constitute robbery by taking money from another upon a threat to charge him with an unnatural crime, the money must be taken immediately upon the threat made, and not after the parties have separated, and time for the prosecutor to delibe. rate and procure assistance, and especially after he had consulted a friend, who was even present at the time when the money was paid, though the prosecutor parted with his money from fear of losing his character.

No case however has gone further than that of James and Ezekiel Astley, who were indicted for robbing Jonathan Grundy. It appeared that the prisoners and a person unknown went to a public-house near Birmingham, during the time of the late riots, which was three or four hundred yards from Mr. Grundy's house, early in the morning, where one of them said that they were going up to Mr. G.'s house, "and if he did not turn out the whack, his house would be down by two o'clock in the morning;" on which the stranger observed that he himself would do it; that he was the head of the mob, and had three or four hundred men from Birming. ham, (then in a at command at any time; with other like discourse. They all destate of riot and parted towards Mr. G.'s house; but before they arrived there they disturbance), saw his servant at a little distance from it, whom they accosted; and burn the James Astley telling him he was come as a friend to let Mr. prosecutor's house down if he G. know that this man (the stranger) was the head of the mob, and the first man who had entered all the places which were destroyed at Birmingham. They then seeing Mr. G. come out of his house, pulled off their hats, and shouted Church and King. Mr. G. did the same, advancing towards the prisoners in much alarm, when the stranger accosted him, saying, "I am come out of friendship to you, Mr. G., to let you know your house is marked to come down to-morrow morning at two o'clock. I am the head of the mob: they are two thousand strong in Birmingham. I must have something to make my men drink. I can bring two or three hundred in an hour's time, or keep them back." Mr. G. said, "As to something to drink, you shall have any thing you have a mind for." The stranger said, "I must have money.' Mr. G. pulled out half-a-crown from his pocket, and offered it to him; but the stranger refused it, and turned away with expres

did not give them money, which he did

under fear of that threat; held robbery.

sions of contempt. Mr. G. then asked what he wanted; the stranger replied, he must have twenty guineas; and on Mr. G. saying that he had not so much in his house, the other told him, that if he did not give him something handsome for his men to drink, his house should come down. Mr. G. said, that he might have nine or ten guineas, which the stranger asked to see: and as Mr. G. was taking his purse out of his pocket, James Astley told him he might depend upon it that the other man was the head of the mob, and the like sort of discourse which had passed before concerning his power; particularly, that he was the first man who had entered every house that had been destroyed. Mr. G. was so struck with that expression that he immediately took the money out of his purse (nine guineas and a half), which he gave to the stranger; who counted it, and demanded to have something to drink. They all went then into Mr. G.'s house, where they had liquor, and in going away assured him that he should be protected. Mr. G. said, that he was greatly alarmed, but not for his person : that no injury was threatened to his person: that when he delivered his money his apprehension was, that if he had refused so to do, the prisoners would have gone to Birmingham, and have returned with other persons, and pulled down his house and plundered it before he could have removed his wife, who was in the house in great agitation, as the prisoners had threatened, and in the same manner as different houses in Birmingham had been before pulled down. It appeared that the prisoners had a small share of the money afterwards. It was objected on their behalf, that there was no evidence of robbery, inasmuch as the prosecutor did not deliver his money from any immediate fear of danger to himself or his property, but from an apprehension of future injury to his house by pulling it down. And the counsel for the Crown admitting it to be a new case, Grose J. proposed to have a special verdict found; but on account of the prisoner's situation, it was agreed that the truth of the evidence should be left to the jury, and if they should find the prisoners guilty, the judgment should be respited, and the facts submitted to the judges for their opinion, whether the evidence amounted to robbery. The jury found the prisoners guilty; saying that they were satisfied that Mr. Grundy did not deliver his money from any apprehension of danger to his life or person, but from an apprehension that if he refused, his house would at some future time be pulled down, as the prisoners and the stranger threatened, in the same manner as other houses in Birmingham had been before. In Michaelmas term 1792, a majority of the judges held this to be robbery.

2 East's P. C. 732.

But in Rex v. Wood and Knewland, who under pretence of an R. v. Wood and auction got a woman into a house and compelled her by threats of Knewland, carrying her before a magistrate and to prison, for not paying for O.B. Jan. 1796. a lot pretended to have been bid for by her, to pay them one shil- cor. Heath J. ling through fear of prison, and for the purpose of obtaining her liberty, but without fear of any other personal violence: this was holden to be duress, and not robbery. Ashhurst J., in delivering the opinion of the judges, observed that there was no reason for such a degree of terror in this case as to induce the prosecutrix to part with her money; she might have known that having done no wrong, if she had been taken to prison, the law would have taken her under its protection and set her free; and that the law

7 G. 2. c. 21.

intent to rob.

did not allow the fear of being sent to prison to be a sufficient ground of terror to constitute a robbery.

If the property be not taken by actual violence, and the owner only deliver it in consequence of prior threats, such delivery must be enforced by terror actually felt at the time to constitute the crime; otherwise there is neither actual nor constructive violence in the taking, and consequently, no robbery.

Therefore where the prosecutor, in consequence of the prisoners having on a prior day threatened to charge him with an unnatural crime, unless he would give him money, &c. on a subsequent day gave them 201. and a bond to secure the annual payment of 50.; but added that, though at the beginning of the business he apprehended injury to his person or character, yet that he had no such apprehension when he gave the money and the bond, but parted with both for the purpose of bringing the prisoners to justice, and with that view only; it was holden on a reference to the judges, that this was not a robbery.

It is not enough that the fear arise after the property is taken. Harman being on horseback, desired Halfpenny to open a gap for him; and while he was so doing, Harman took the opportunity unperceived to pick his pocket of his purse. Halfpenny turning round and seeing the purse in Harman's hand, demanded it of him, who then menaced Halfpenny (in the manner beforementioned) and went away with the purse. On an indictment for robbery, the prisoner was holden guilty of simple larceny only; the property being obtained by stealth, and not by violence or putting in fear; the words of menace being used after the taking.

II. Assaulting with Intent to rob.

And taking from his person.] Taking a thing in a man's presence is in law a taking from the person. Hale's Sum. 73. R. v.

Francis and others, 2 Str. 1015.

Thus, if one take or drive my cattle out of my pasture, in my presence, this is robbery, if he make an assault upon me or put me in fear. Hale's Sum. 73.

By stat. 7 Geo. 2. c. 21. § 1. it is enacted, "that if any person Assaulting with or persons shall, with any offensive weapon or instrument, unlawfully and maliciously assault; or shall, by menaces, or in or by any forcible or violent manner, demand any money, goods, or chattels, of or from any other person or persons; with a felonious intent to rob or commit robbery upon such person or persons; that then and in every such case, all and every such person and persons so offending, being thereof lawfully convicted, shall be adjudged guilty of felony, and be liable to be transported, as in cases of felony. And the courts by and before whom he, she, or they shall be tried and convicted shall have power of transporting such offenders for seven years, upon the like terms and conditions, and by the same ways and means, and in like manner as other felons may be transported to any of the colonies in America by any law now in being.'

R. v. Trusty and Howard.

§ 2. If any such offender break gaol, or escape before such transportation, or return before the expiration of seven years, he shall suffer death as a felon, without benefit of clergy.

With any offensive weapon, &c. assault.] Trusty and Howard were indicted for a felonious assault on J. Halse, with a certain

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