the said child, of which she was so big and pregnant, as last aforesaid, dead, by reason and means of which last mentioned premises, she the said Anne became and was rendered weak, sick, sore, lame, diseased and disordered in body, and remained and continued so weak, sick, sore, lame, discased, and disordered in body, as last [*801] *aforesaid, for a long time, (to wit,) for the space of six months then next following, and during all the time last aforesaid, underwent and suffered great and excruciating pains, anguish, and torture, both of body and mind, and other wrongs to the said A. E. he the said E. F. then and there unlawfully, wilfully, wickedly, maliciously, and injuriously, did, to the grievous damage of the said Anne, and against the peace of, &c. [5th count for common assault.] Fifth count for common asault. ROBBERY. (≈) PRELIMINARY NOTES. fence. Offence. Robbery is the felonious taking from the person of The of another, money or goods of any value, by putting in fear, 3 Inst. 68. 4 Bla. Com. 243. To constitute robbery, therefore, something must be taken. The theft must be from the person-and it must be effected by putting in fear-but the construction on these words requires examination. 1. Something must be taken, though the value is immaterial, 3 Inst. 68. An assault with intent to rob, was indeed, formerly holden to be robbery on the principle, voluntas reputatur pro facto, but this maxim in every case, except treason, has been long since exploded, 3 Inst. 69. The attempt, which was anciently a misdemeanour, is now a clergyable felony by statute, as we shall see hereafter, 7 Geo. II. c. 21. To constitute a taking, the property must have passed into the possession of the offender, 3 Inst. 69. So that if a purse were fastened to the girdle of its owner, which the thief cut, and the purse fell to the ground, this is no robbery; but if the robber once had the property in his hand, though it was immediately relinquished, the offence is complete ; 3 Inst. 69. 1 Leach 228. and therefore to snatch an ear-ring from a lady's ear, so that the ear is torn in the operation, is robbery, though it is dropped immediately into the hair, and is there found by the owner, 1 Leach, 321. 2. The taking must be from the person. But if the property be taken in the presence of the party, this will suffice; so that to take the horse standing near its owner, or to drive away his sheep or cattle before his face, after putting him in fear, is robbery, 3 Inst. 69. 4. Bla. Com. 243. And if a man take a purse, &c. which another, on being assaulted, has thrown away through fear, (z) On this subject in general, see 3 Inst. 68, 9. Hawk. b. 1. c. 34. 4 Bla. Com. 243, 4. Com. Dig. Justices A. 1, 2, 3. 2 East P. C. 707 to 736. Burn J. Robbery. Williams, Felony II. Dick J. Robbery. This crime is sometimes classed under the head of larceny, VOL. II. and might not improperly have been 4 B or his hat which has fallen from his head, or his property from a [*803] *servant in his presence, he will be considered as having taken it from the person. 3 Inst. 39. Hawk. b. 1. c. 34. s. 6.-But where thieves struck money out of the owner's hands, and by menaces drove him off, so that he could not take it up, and then seized it themselves, a special verdict was found, not stating that it was taken up in the presence of the owner, the court would not intend it, and the prisoners were admitted to clergy, 2 Stra. 1015. 3. There must be a violence and putting in fear. This is the circumstance which distinguishes robbery from all other larcenies. But what degree of force must be used, and what kind of fear's excited, are questions that have often been the subjects of dicussion. It is certain that the goods must be taken against the will of the possessor; for if three persons agree to rob a fourth, in order to obtain the reward to be shared among them all, and the last consents to the scheme, it is impossible that any robbery can be committed, Fost. 123. (ante 1 Vol. 2. n. b. and c.) But where a man, knowing a road to be infested with highwaymen, puts a little money in his pocket, and goes out for the purpose of detecting and securing them, and on being accosted, delivers his money, and then succeeds in apprehending the offender, the latter will be guilty of a robbery. Fost. 129. It seems that there must be either a putting in fear or an actual violence, though both need not be positively shown, for the former will be inferred from the latter, and the latter is sufficiently implied in the former. Thus where a man is suddenly knocked down and his property taken, while he is senseless, there can be no room for terror, and yet it is evident that this is a robbery, 2 East, P. C. 711. So there may be robbery where no actual force is used, from the mere influence of terror. Thus it has been repeatedly decided, that to obtain money by threatening to accuse a party of an unnatural crime, though he is under no apprehensions for his life, is a robbery, 1 Leach 139, 193, 278. For as observed by Mr. Justice Ashurst, "The true definition of robbery is the stealing or taking from the person of another; or in the presence of another, property of any amount with such a degree of force or terror, as to induce the party unwillingly to part with his property; and whether the terror arises from real or expected violence to the person, or from a sense of injury to the character, makes no kind of difference; for to most men the idea of losing their fame and reputation, is equally, if not more terrific, than the dread of personal injury. The principle ingredient in robbery is a man's being forced to part with his property; and the judges are unanimously of opinion, that, upon the principles of law, as well as the authority of former decisions, a threat to accuse a man of the greatest of all *crimes, is a suffi- [*804] cient force to constitute the crime of robbery by putting in fear," 1 Leach, 280.-But if no actual force was used, and at the time of parting with the money, the party were under no apprehension, but gave it merely for the purpose of bringing the offenders to justice, they cannot be capitally convicted, though we have seen it is otherwise, where personal violence is employed, 1 East, P. C. 734. And the influence exercised over the mind, where the force is merely constructive, must be of such a kind as to disenable the prosecutor to make resistance, 2 Leach, 721. 6 East, 126. So that a threat to take an innocent person before a magistrate, and thence to prison, without charging him with any specific crime, is not sufficient to make the party a robber, if he obtain money to induce him to forbear, 2 Leach, 721. Indeed it has been said that the only instance in which a threat will supply the place of force, is an accusation of unnatural practices, 2 Leach, 730, 1. And, it has been recently held, contrary, it seems, to the principle of some former decisions, that even, in this case, the money must be taken immediately on the threat, and not after time has been allowed to the prosecutor to deliberate and advice with friends, as to the best course to be pursued, 1 East, P. C. app. xxi. though, as some of the judges dissented, it does not seem to be decisive. Where, on the other hand, there is an immediate threat of injury to the property, as by pulling down a house with a mob in time of riots, which produces great alarm, and induces a man to part with his money, this has been holden to be a sufficient putting in fear to constitute robbery, 2 East, P. C. 729, 731. And if a man assaults a woman with intent to commit a rape, and she, in order to prevail on him to desist, offers him money which he takes, but continues his endeavours, till prevented by the approach of a third person, he will be guilty of robbery, though his original intent was to ravish, 1 East, P. C. 711. If thieves meet a person, and by menaces of death, make him swear to bring them money, and he, under the continuing influence of fear for his life, complies, this is robbery in them, though it would not be so, if he had no personal fear, and acted merely from a superstitious regard to an oath so extorted, 1 East, P. C. 714. To constitute a robbery, where an actual violence is relied on and no putting in fear can be expressly shewn, there must be a struggle, or at least a personal outrage. So that to snatch property suddenly from the hand, to seize a parcel carried on the head, to carry away a hat and wig without force, and to take an umbrella of a sudden, have been respectively holden to be mere larcenies, 1 Leach, 290, 1, and in notes. But where a man snatched at the sword of a gentleman hanging at his side, [*805] and the latter perceiving *the design laid hold on the scabbard, on which a contest ensued and the thief succeeded in wresting the weapon from its owner, his offence was holden to be robbery. id. ibid. And where a heavy diamond pin with a corkscrew stalk, which was twisted and strongly fastened in a lady's hair, was snatched out and part of the hair torn away, the judges came to a similar decision, 1 Leach, 335. The case of the man who torc an car-ring from the ear, and in so doing lacerated the flesh, which has been already alluded to for another purpose, serves also to confirm this position, 1 Leach, 320. Nor will it excuse the violence that it was done under pretence of law; for where a bailiff handcuffed a prisoner and used her with great cruelty for the purpose of extorting money from her, he was holden to be guilty, as were also a number of men for seizing a waggon under pretence that there was no permit, when none was in reality necessary, 1 Leach, 280, 1 East P. C. 709. Nor will a pretence of any kind excuse where the essence of the crime is clear; thus if a person ask alms with a drawn sword of one who gives him money through terror, or if he accompany the language of request by such acts or menaces as would overcome a firm and prudent man, the colorable pretext will not avail him, 2 East P. C. 711. so if a man, by such means, compel another to take less for goods than their value, or take from him money and give him things of less worth as a colora |