WRIGHT'S CASE.

(Upper Bench, 1649. Style 56.)

In the case of one Wright, brought upon the statute of hue and cry, ROLL, Chief Justice, said: That if a man's servant be robbed of his master's goods in the sight of his master, this shall be taken for a robbing of the master. And if one cast away his goods to save them from a robber, and the robber take them up, and carry them away, this is a robbery done to his person.

HARMAN'S CASE.

(King's Bench, 1701. 2 East, P. C. 736.)

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, and Harman answered him: "Thou villain, if thou speakest but a word of thy purse, I will pluck thy house over thy ears and drive thee out of the country, as I did John Somers." And so he went away with his purse. On an indictment for robbery, the prisoner was held guilty of simple larceny only; the property being obtained by stealth, and not by violence or putting in fear.2

DAVIES' CASE.

(Old Bailey, 1712. 2 East, P. C. 709.)

Davies, alias Beard, was indicted for taking a gentleman's sword from his side, clam et secrète; but, it appearing that the gentleman. perceived that Davies laid hold of his sword, and that he himself laid hold of it at the same time and struggled for it, this was adjudged robbery.'

1 The menaces are inserted from the report of the case in 2 Rolle's Report, 154.

2 Accord: Jackson v. State, 114 Ga. 826, 40 S. E. 1001, 88 Am. St. Rep. 60 (1902).

8 Accord: Williams v. Commonwealth (Ky.) 50 S. W. 240 (1899). "Violence may be used for four purposes: (1) To prevent resistance. (2) To overpower the party. (3) To obtain possession of the property. (4) To effect an escape. Either of the first two makes the offense robbery. The last, I presume it will be conceded, does not. The third is a middle ground. In general, it does not make the offense robbery; but sometimes, according to some of the cases, it does." Pearson, J., in State v. John, 50 N. C. 167, 69 Am. Dec. 777 (1857).

HUGHES' CASE.

(Lancaster Assizes, 1825. 1 Lew. 301.)

Prisoners were indicted for robbery. It appeared in evidence that they, together with others, their companions, hung around the prosecutor's person in the streets of Manchester, and rifled him of his watch and money. It did not appear, however, that any force was used, or any menace; but they so surrounded him as to render all attempt at resistance hazardous, if not vain.

Per BAYLEY, J. In order to constitute robbery, there must be either force or menaces. If several persons so surround another as to take away the power of resistance, this is force.

Prisoners were convicted.1

REX v. EDWARD.

(Winchester Assizes, 1833. 1 Moody & R. 257.)

Indictment for robbery.

The money was obtained from the witness by a threat to accuse her husband of an unnatural offense, and the money so obtained was the property of the husband, the prosecutor.

LITTLEDALE, J., said the case was new and perplexing. He thought it was rather a misdemeanor. To make a case of this description a robbery, the intimidation should be on the mind of the person threatened to be accused, and the apprehension of the wife was of a different character. St. 7 & 8 Geo. IV, c. 2, § 7, is in terms confined to threats made to the party himself. The principle is that the person threatened is thrown off his guard, and has not firmness to resist the extortion; but he could not apply that principle to the wife of the party threatened. Even as a misdemeanor, the case was new, though he thought that the only way to treat the offense. He therefore directed an acquittal.

The prisoner was acquitted.

1 See, also, Commonwealth v. Snetling, 4 Bin. (Pa.) 379 (1812); Snyder v. Commonwealth (Ky.) 55 S. W. 679 (1900).

2 See Rex v. Donnelly, 1 Leach, 229 (1779). Cf. Rex v. Knewland, 2 Leach, 72 (1796); Long v. State, 12 Ga. 293 (1852).

In Thompson v. State, 61 Neb. 210, 85 N. W. 62, 87 Am. St. Rep. 453 (1901), it was held that a threat to accuse a person of an unnatural crime was sufficient violence to constitute robbery, and that the person so threatened was justified in killing the robber as a necessary means of defense.

HILL v. STATE.

(Supreme Court of Nebraska, 1894. 42 Neb. 503, 60 N. W. 916.)

POST, J. Exception was taken also to the following instruction: "You are therefore instructed in this case, if you believe from the evidence beyond any reasonable doubt that, at the time of the alleged killing of Mattes Akeson, the defendant, Harry Hill, with John Benwell, had entered his dwelling house, armed with a deadly weapon or weapons, for the purpose of intimidating the deceased for the furtherance of their purpose to steal, take, and carry away by force and violence the money or any article of personal property of the deceased's dwelling house, and that in the prosecution of that purpose and design the defendants, or either of them, shot the deceased, and thereby caused his death, that such killing would be murder in the first degree."

There appears to have been an error or omission in the transcribing of the above instruction, wherein the court is made to say that the accused might be convicted if he feloniously killed the deceased while engaged with his codefendant in attempting forcibly to take, steal, or carry away "any article of personal property of the deceased's dwelling house." But the objection to the instruction is upon other grounds, viz., that it authorizes a conviction provided the jury should find that the defendant forcibly entered the house of the deceased for the purpose of committing a larceny. Robbery at common law was defined as larceny committed by violence from the person of one put in fear. 2 Bishop, Criminal Law, 1156. By section 13 of our Criminal Code it is provided that "if any person shall forcibly and by violence, or by putting in fear, take from the person of another any money or personal property of any value whatever with the intent to rob or steal, every person so offending shall be deemed guilty of robbery, and upon conviction thereof shall be imprisoned in the penitentiary not more than fifteen nor less than three years." The taking, according to each definition, must be from the person, since the crime of robbery is an offense as well against the person as against property. It is, however, not essential to a conviction for the crime named that the property be taken from the body of the person wronged. It is sufficient if taken from his personal presence or personal protection. 2 Bishop, Criminal Law, 1177, 1178; United States v. Jones, 3 Wash. C. C. (U. S.) 209, Fed. Cas. No. 15,494; Clements v. State, 84 Ga. 660, 11 S. E. 505, 20 Am. St. Rep. 385; State v. Calhoun, 72 Iowa, 432, 34 N. W. 194, 2 Am. St. Rep. 252. In the last-named case, which was under a statute similar to ours, the prisoner was shown to have bound the prosecutrix, and by putting her in fear extorted information respecting the place where

1 Part only of this case is printed.

her money and other personal property was kept. Leaving her bound, he went to the place designated by her in another room of the same house and took the property named in the indictment. In the opinion the court, by Beck, J., uses this language: "The thought of the statute, as expressed in the language, is that the property must be so in the possession or under the control of the individual robbed that violence or putting in fear was the means used by the robber to take it." And in Clements v. State the prisoner, by threats of violence, detained the prosecutor in an outhouse while a confederate entered his dwelling, 15 paces distant, and took therefrom the property described, and the taking was held to be in the presence of the prosecutor, within the meaning of the statute defining robbery. The taking of the property of the deceased from his dwelling under the circumstances indicated by the instruction would have been robbery. It would also have sustained a conviction for larceny. Brown v. State, 33 Neb. 354, 50 N. W. 154. The objection to the instruction is, therefore, without merit.2

2 See, also, Williams v. State, 37 Tex. Cr. R. 147, 38 S. W. 999 (1897); State v. Kennedy, 154 Mo. 268, 55 S. W. 293 (1899). Compare Jackson v. State, 114 Ga. 826, 40 S. E. 1001, 88 Am. St. Rep. 60 (1902).

CHAPTER XIV.

EMBEZZLEMENT.

1

If any servant or clerk, or any person employed for the purpose in the capacity of servant or clerk, to any person or persons whomsoever, or to any body corporate or politic, shall [by virtue of such employment] receive or take into possession any money, goods, bond, bill, note, banker's draft, or other valuable security or effects, for, in the name or on account of his master or masters, or employer or employers, and shall fraudulently embezzle, secrete, or make away with the same, or any part thereof, every such offender shall be deemed to have feloniously stolen the same from his master or masters, employer or employers, for whose use or in whose name or names, or on whose account the same was or were delivered to or taken into the possession of such servant, clerk, or other person. so employed, although such money, goods, bond, bill, note, banker's draft, or other valuable security was or were not otherwise received into the possession of his or their servant, clerk or other person so employed.

*

St. 39 Geo. III, c. 85.

REX v. SMITH.

(Court for Crown Cases Reserved, 1823. 1 Lew. 86.)

Thomas Smith was indicted under the above statute for embezzling a £1 promissory note, and 17s. 6d., the property of his masters, H. and J.

The facts were as follows: H. and J. who farmed the tolls of Y. and also of Z., requested B., who was. hired by them to collect at Y., to receive to their use the tolls collected at Z., and they desired the collector at Z. to pay them over to B. at convenient opportunities. B. appropriated to his own use the tolls so paid over by the collector of Z.

The question was whether this was an act of embezzlement within the meaning of the statute.

1 The words in brackets are omitted in the present statute. St. 24 & 25 Vict. c. 96, § 68.

2 St. 39 Geo. III, c. 85. The statute is omitted.