« EelmineJätka »
[menaces and violence, puts a man in fear, and drives away his sheep or his cattle before his face (d). But if the taking be not either directly from his person or in his presence, it is no robbery (e). 2. It is immaterial of what value the thing is: a penny as well as a pound, thus forcibly extorted, makes the robbery (ƒ). 3. Lastly, the taking must be by force, or a previous putting in fear, which makes the violation of the person more atrocious than privately stealing. For, according to the maxim of the civil law, qui vi rapuit, fur improbior esse videtur (g). This previous violence or putting in fear, is the criterion that distinguishes robbery from other larcenies. For if one privately steals a chattel from the person of another, and afterwards keeps it by putting him in fear, this is no robbery, for the fear is subsequent (h). Not that it is indeed necessary to lay in the indictment, that the robbery was committed by putting in fear; it is sufficient if laid to be done by violence (i). And when it is laid to be done by putting in fear, this does not imply any great degree of terror or affright in the party robbed: it is enough that so much force or threatening, by word or gesture, be used as might create an apprehension of danger; or induce a man to part with his property without or against his consent (k). Thus, if a man be knocked down without previous warning, and stripped of his property while senseless, though strictly he cannot be said to be put in fear, yet this is undoubtedly a robbery. Or, if a person with a sword drawn begs an alms, and I give it him through mistrust and apprehension of violence; this also falls within the definition of the same crime (7). So if, under a pretence of sale, a man forcibly extorts money from another, neither shall this subterfuge avail him.
(d) 1 Hale, P. C. 533.
(e) Comyns, 478; R. v. Francis, Str. 1015.
(f) Hawk. P. C. b. 1, c. 34, s. 16. (9) Ff. 47, 2, 4, xxii.
(h) 1 Hale, P. C. 534.
(i) Trin. T. 3 Ann, so held by all the judges.
(k) Fost. 128.
(2) Hawk. P. C. b. 1, c. 34, s. 8.
[But it is doubtful whether the forcing a higgler or other chapman to sell his wares, and giving him the full value for them, amounts to so heinous a crime as robbery (m). This species of larceny was debarred of the benefit of clergy by stat. 23 Hen. VIII. c. 1, and other subsequent statutes; not indeed in general, but only when committed in a dwelling-house, or in or near the king's highway. A robbery, therefore, in a distant field, was not punished with death (n); but was open to the benefit of clergy till the statute 3 & 4 W. & M. c. 9; which took away clergy from both principals and accessories before the fact in robbery, wheresoever committed.]
But all these statutes,-as well as the 8 Eliz. c. 4, with respect to privately stealing from the person,-were repealed by 7 & 8 Geo. IV. c. 27. And, by other enactments, new provisions have been made against both species of offences; with distinctions, as regards robbery, suitable to the aggravations with which that crime may have been committed. According to these, whosoever shall rob any person, or shall steal any chattel, money or valuable security from the person of another, shall be guilty of felony, and may be sentenced to penal servitude for fourteen years or not less than five years, or to imprisonment, with or without hard labour and solitary confinement, not exceeding two years (o). And if the robbery be not effected or proved, but the offender be convicted (as he may be on an indictment for robbery) of an assault with intent to rob, then such assault is also felony, and imprisonment to the same extent may be awarded; but, if the punishment be by way of penal servitude, the term in that case is limited to five years (p). In certain instances, however, either robbery or an assault
(m) Hawk. P. C. b. 1, c. 34, s. 14. (n) 1 Hale, P. C. 535.
(o) 24 & 25 Vict. c. 96, s. 40; 27 & 28 Vict. c. 47. This and the following provisions are in sub
stitution for others contained in 7 Will. 4 & 1 Vict. c. 87, and 14 15 Vict. c. 100, which are repealed by 24 & 25 Vict. c. 95.
(p) 24 & 25 Vict. c. 96, ss. 41, 42.
with that intent, is more severely punishable; for whosoever shall, being armed with an offensive weapon or instrument, rob or assault with intent to rob any person; or shall, together with one or more other person or persons, rob or so assault any person; or shall rob any person, and at the time of or immediately before or after wound, beat, strike, or use personal violence to any person,-may be sentenced to penal servitude for life, or not less than five years, if that species of punishment be awarded (9); but he may here, also, at the discretion of the court, be punished by imprisonment merely, to the extent and in the manner already particularized (r); and to this (by a later provision) the infliction of whipping may be added (s).
In connexion with the crime of robbery, may here be mentioned the provisions which have been framed to repress the offence of extorting money and other valuables. by threats of various kinds. And, first, the same punishments as last mentioned are awarded to the felonious act of sending, delivering or uttering, or directly or indirectly causing to be received, knowing its contents, any letter or writing demanding of any person, with menaces and without any reasonable or probable cause, any property, chattel, money, valuable security or other valuable thing (t). And penal servitude to the extent of five years, or imprisonment as before (but not whipping), is awarded to whomsoever shall demand with menaces or by force any property, chattel, money, valuable security or valuable thing, with intent to steal the same (u).
Moreover penal servitude for life or five years, or im
(g) See 27 & 28 Vict. c. 47.
(r) 24 & 25 Vict. c. 96, s. 43. The provision previously in force (7 Will. 4 & 1 Vict. c. 87, ss. 2, 3, now repealed by 24 & 25 Vict. c. 95,) made robbery, accompanied with wounding, &c., a capital felony. (s) 26 & 27 Vict. c. 44.
(t) 24 & 25 Vict. c. 46, s. 44. This and the following provision are in substitution of 7 & 8 Geo. 4, c. 29, s. 8, and 7 Will. 4 & 1 Vict. c. 87, ss. 7, 12, repealed by 24 & 25 Vict. c. 95.
(u) 24 & 25 Vict. c. 96, s. 45; 27 & 28 Vict. c. 47.
prisonment with or without hard labour, solitary confinement and whipping,-may be awarded to whomsoever shall commit the felonious crime of sending, delivering or uttering, or directly or indirectly causing to be received, knowing the contents, a letter or writing, accusing or threatening to accuse (a) any one of a crime punishable by law with death or penal servitude for not less than seven years,—or of an assault, or attempt or endeavour to commit any rape or infamous crime,-with a view or intent thereby to extort or gain any thing from any person (y); and may be awarded to whomsoever shall accuse or threaten to accuse either the person to whom such accusation or threat shall be made, or any other person, of any of the above crimes, with the view or intent of such extortion or gain, either from the person accused or threatened, or from any other person (z);and (with the exception of the whipping) may be awarded to whomsoever, with intent to defraud or injure another, shall by unlawful violence, restraint or threat to the person of another, or by accusing or threatening to accuse him of any treason, felony or infamous crime, compel or induce him to execute, make, accept, indorse, alter or destroy any valuable security, or to affix his name or the name of any other person or company, firm or co-partnership, or the seal of any corporation or society, to any paper or parchment, in order that the same may be converted into a valuable security (a).
4. Larceny or embezzlement by clerks, servants, &c. (b). Special provision against larcenies by servants was made
(a) See also 6 & 7 Vict. c. 96, s. 3, as to the offence of threatening to publish or offering to abstain from publishing a libel with intent to extort money, &c.
(y) 24 & 25 Vict. c. 96, s. 46. This section (which is in substitution for the repealed 7 & 8 Geo. 4, c. 29, s. 8) defines "the infamous
crimes" to which it refers. See also as to the menaces or threats used, 24 & 25 Vict. c. 96, s. 49.
(z) Sect. 47, framed on 10 & 11 Vict. c. 66, s. 2, repealed by 24 & 25 Vict. c. 95.
(a) 24 & 25 Vict. c. 96, s. 48. (b) In certain cases, larceny by clerks and servants may be disposed
by the statutes 33 Hen. VI. c. 1, and 21 Hen. VIII. c. 7; but both of these were repealed by 7 & 8 Geo. IV. c. 27. By the enactments now in force on the subject, it is provided, that whosoever, being a clerk or servant, or person employed in the capacity of a clerk or servant, shall steal any chattel, money, or valuable security, belonging to or in the possession or power of his master, shall be guilty of felony, and liable to penal servitude for a term not exceeding fourteen years, nor less than five years (c); or may be imprisoned (with or without hard labour or solitary confinement) for a term not exceeding two years; and, if a male under the age of sixteen, may be whipped, if the court think fit, in addition to the imprisonment (d). And if larceny be committed by one employed in the public service of her Majesty, or by a constable or other person employed in the police, of any chattel, money, or valuable security, belonging to or in the possession or power of her Majesty, or intrusted to or received by the thief in virtue of his employment,-the same punishments as last mentioned (with the exception of whipping) may be awarded (e). In addition to which, there are separate provisions against embezzlement; a crime distinguished from larceny (properly so called), as being committed in respect of property which is not, at the time, in the actual or legal possession of the owner (ƒ). As to this it is enacted, that whosoever, being a clerk or servant, shall fraudulently embezzle any chattel, money, or valuable security, which shall be delivered to or received,
of summarily by justices at petty sessions, or before a metropolitan or stipendiary magistrate. (Vide post, chapter on Summary Convictions.) See also 26 & 27 Vict. c. 103, as to certain cases of mis-appropriation by servants of the property of their
(c) See 27 & 28 Vict. c. 47.
This is in the place of 7 & 8 Geo. 4, c. 29, s. 46, repealed by 24 & 25 Vict. c. 95.
(e) 24 & 25 Vict. c. 96, s. 69. See Reg. v. Moah, 25 L. J. (M. C.) 66.
(f) See R. v. Gill, 1 Dearsley's C. C. R. 289. As to the indictment for embezzlement, see 24 & 25 Vict. c. 96, s. 71.