with force and arms, assaulted and robbed the prosecutor is good

shld however be

after verdict; and an indictment for robbery need not conclude "feloniously assaulted het contra pacem, as the punishment is only altered by the statute.

An indictment alleged that the prisoners, with force and arins, upon tra formann W. M., did make an assault, and him the said W. M., then

and there feloniously did rob of, &c., and did not conclude " against
the form of the statute ;" and it was objected that it ought to have
averred either that the act was committed with force and violence, or
that the party was put in fear; it was answered that the word rob
necessarily imported that the act was accompanied with violence, and
Trapshaw's case was cited. (c) Lord Lyndhurst, C. B., was inclined to
think the indictment insufficient, but upon consideration he stated his
determination to reserve the point; however, at the following assizes,
Mr. B. Parke said, "Lord Lyndhurst had intended, if on considera-
tion he thought it doubtful, to reserve this question for the decision of
the Judges; but he has conferred with some of them, including
myself, and we are of opinion that it was sufficient to follow
the words of the statute 7 & 8 Geo. 4, c. 29, s. 6, and that it is un-
necessary to pronounce whether the objection would have been good
upon demurrer, since it must be considered in arrest of judgment,
though, in point of fact taken before verdict, as is from courtesy and
convenience commonly done and allowed, though not strictly
regular. And such being the case, the omission of a more par-
ticular description of the offence is cured by the 7 Geo. 4, c. 64, s. 21."
The learned Judge then mentioned the case of Rex v. Chatburn, (d)
which was an indictment for murder, and a conviction for man-
slaughter; there the prisoner was transported for life, though
the words contra formam were omitted. The reason was, as in this
case, that the punishment only is varied. (e)

indicted under

sary to aver

Where several are jointly indicted under the 1 Vict. c. 87, s. 3, Where several
for robbery, it is not necessary to aver that they were together; but are jointly
where one only of the party is indicted, it ought to be averred that the 1 Vict.
he committed the offence together with others. Upon an indict-c. 87, s. 3, it
ment for robbery it appeared that the prisoner committed the act is not neces-
together with others, who were not apprehended, but it was not so that they were
charged in the indictment; and the question was, whether, in order together,
to bring him within the higher penalty, it ought not to have been
specially averred. Patteson, J., " Where several are indicted for
committing the offence it is not necessary to aver that they were to-
gether; but if one be indicted alone, who committed the act with
others, it is proper that it should be so averred." (ƒ)

(c) 1 Leach, 427. There Gould, J., in delivering the opinion of the judges upon the question whether under the words "rob any dwelling-house," in the 3 & 4 Wm. & M. c. 9, a breaking and entering the house was necessary, said, "The word rob in legal construction always includes the idea of force and violence, and although this part of the statute does not expressly signify that breaking and entering the house is necessary to constitute the crime, yet it has always been held upon this statute, as well as upon other acts of parliament penned in the same manner, that those ingredients are ex vi termini included

in, and implied by, the word rob."

(d) R. & M. C. C. R. 403, ante, p. 655.
(e) Lennox's case, 2 Lew. 268.

(f) Raffety's case, 2 Lew. 271. In
Doran's case, ibid., note, the same very
learned judge ruled the same way. As-
suming this ruling to be correct, it may
admit of doubt whether it be prudent in an
indictment against several, merely to al-
lege that they robbed the prosecutor,
because, in case only one were convicted, it
may well be doubted whether judgment for
the more severe punishment could be given
against him. The offence is one consisting
of number, and in this respect like a riot; and

secus, where

one only is

indicted.

Statement of the place where the robbery was committed.

Indictment using the

maiden name of the prose

:

It was formerly material to state correctly in the indictment, whether the robbery was committed in or near the king's highway; and many points of much nicety arose as to the manner of such statement, and also as to what should be considered as a highway robbery. (g) But the 3 Wm. & M. c. 9, s. 1, (now repealed) relating generally to all robberies, whether in a highway, house, or elsewhere, made these points no longer necessary to be considered and we have seen that the provisions of the 1 Vict. c. 87, are quite general. (h) In a case which occurred soon after the 3 Wm. & M. was passed, where the indictment was for a robbery near the highway, and a robbery in a house was the offence proved, it was holden by all the Judges, that as that statute took away clergy in all robberies, the prisoners should not have their clergy. (i) And so upon an indictment which charged the prisoner with robbing a person in a field near the highway, where the jury found a verdict "guilty of the robbery, but not near the highway," it was holden by all the Judges that the prisoner was ousted of clergy. (1) And a case is mentioned as having been determined upon similar principles, where the robbery was in a house in the street, hired by one of the prisoners for the purpose, but not inhabited by any one; and the indictment charged the robbery to have been committed in the dwelling-house of that prisoner. (k) It followed, therefore, that it was not material, where the robbery was charged to have been committed in a dwelling-house, that the ownership of the house should be correctly stated. Thus, where the prisoner was convicted upon an indictment, which charged him with robbing a person in the dwelling-house of one Aaron Wilday, and it had not appeared who was the owner of the house in which the fact was committed, the Judges held the conviction proper. (7) And again where the prisoner was indicted for robbing a person in the dwelling-house of Joseph Johnstone, and it appeared, upon the evidence, that the prisoner, whose name was Susannah Johnstone, had committed the robbery in the house of her husband, but the Christian name of the husband could not be proved; the prisoner being convicted upon this evidence, the Judges were of opinion that the conviction was proper. (m)

In a case of an indictment for a highway robbery on the person of Elizabeth Hudson, 'it appeared that such was the name of the prosecutrix at the time the robbery was committed, but that after the cutrix, where robbery, and at the time the bill was presented to the grand jury, and found by them she was married to a person of the name of

she had mar

there it has been held that if all but two be
acquitted no judgment can be given against
them. Rex v. Sadbury, 1 Lord Raym. 484,
ante, p. 288. Perhaps the safer course would
be to allege that A. B. and C., "together with
divers other evil disposed persons," com-
mitted the robbery (see Rex v. Sadbury),
and then if A. alone were convicted, but it
was proved that he was in company with
another, or others, he might, it is conceived,
receive judgment for the higher punish-
ment. C. S. G.

(g) 1 Hale, 535, 536. 2 East, P. C.
c. 16, s. 168, p. 784, 785.

(h) Ante, p. 867.

(i) Summers's case, 1705. 2 East, P. C. c. 16, s. 68, p. 785.

(j) Wardle's case, 1800. 2 East, P. C. c. 16, s. 168, p. 785. Russ. & Ry. 9. (k) Rex v. Darnford and Newton, O. B. 1780. 2 East, ibid.

(1) Pye's case, Warwick, 1790, cor. Thomson, B., and in East. T. 1790. 2 East, P. C. c. 16, s. 168, p. 785, 786. 1 Leach, 352, note (a).

(m) Johnstone's case, 1793, cor. Ashhurst, J., and in East. T. 1793. 2 East, P. C. c. 16, s. 168, p. 786, Russ. & Ry. 10. in the

note.

Heywood; and, upon these facts, it was objected that the indict- ried after ment was erroneous. But Gould, J., and Eyre, C. B., held that the the robbery, description of the prosecutrix, in this case, by her maiden name, was proper. sufficient. (m)

holden to be

An indictment for robbery must state the ownership of the Ownership of property correctly; and where a servant has received money for his the property must be cormaster, and he is robbed of it before it comes into the actual posses-rectly stated. sion of the master, it should be laid as the property of the servant, and not of the master. Upon an indictment for robbing B. of the money of W., it appeared that B., the servant of W., had received the money of some customers of his master, and was on his return to his master's house, when he was robbed of the money; it was objected that the money could not be laid as the property of W., as it had never reached his hands. Alderson, B., "I am inclined to think the objection valid: it is difficult to see how such an offence as embezzlement could have been part of our criminal law if the possession of the servant of property, which had never come to the hands of the master, were construed to be the possession of the master. If it were, every servant who converted to his own use property received by him for his master would be guilty of larceny." (n)

66

In robbery from the person, as in other complicated or aggravated The verdict larcenies, the prisoner may be acquitted of the circumstances of may be, guilty of aggravation, namely, the fear or violence, and found guilty of larceny. the simple larceny. (0)

It has been held that a prisoner indicted for robbery may be convicted under the 1 Vict. c. 85, s. 11, of an assault, although the jury find that the prisoner had no intention to commit a robbery. (p)

Offences

committed

within the admiralty juris

The 1 Vict. c. 87, s. 13, enacts, "That where any felony punishable under this act shall be committed within the jurisdiction of the admiralty of England or of Ireland, the same shall be dealt with, inquired of, tried, and determined in the same manner as any other diction. felony committed within that jurisdiction."

(m) Turner's case, 1 Leach, 536.

(n) Reg. v. Rudick, 8 C. & P. 237. The jury were discharged as to this indictment, and a new indictment preferred, laying the property in B. in one count, and in W. in another, and the prisoners were convicted upon it. There seems to be a distinction in such cases where the money is stolen from the servant, and where it is embezzled by him. See vol. 2, p. 93, note (u), and p. 163. C. S. G.

(0) 2 East, P. C. c. 16, s. 167, p. 784. But where a special verdict was found,

which stated facts amounting only to a
larceny, as the only doubt referred to the
Court was whether the prisoners were or
were not guilty of the felony and robbery
charged against them in the indictment;
the judges thought that judgment of lar-
ceny could not be given upon such finding.
They, therefore, remanded the prisoners to
be tried upon another indictment. Rex v.
Francis, ante, p. 873.

(p) Reg. v. Ellis, 8 C. & P. 654. See
the section and cases upon it, ante, p. 778,
et seq.

INDEX

TO THE FIRST VOLUME.

A.

ABATEMENT,

undue, of price of native commodities indictable, 173.
ABDUCTION, 716.- See tit. KIDNAPPING.

forcible, of women, 701, et seq.

offence at common law, 701.
by statute, 702.

when complete, 703.

accessories, 691. 702.

s. 19, forcible abduction of a woman on account of her fortune with
intent to marry her, 702.

construction of the 9 Geo. 4, c. 31, s. 19,-707.

there must be evidence of taking from motives of lucre, 708.

declarations of the defendant evidence of his motives, ib.

conviction of an assault on an indictment for abduction, 709.

s. 20, unlawful abduction of a girl under sixteen from her parents
or guardians, 710.

construction of 4 & 5 Ph. & M. c. 8, s. 2, (now repealed), 710,

et seq.

Irish statutes concerning, 715.

forcible abduction, and sending of persons into other countries, 716.
masters of vessels forcing men on shore, and leaving them, 717.

ABETTORS, 26, et seq.-See AIDERS AND ABETTORS.

ABORTION,

murder in attempt to procure, 540.

1 Vict. c. 85, as to administering poison, &c., to cause miscarriage, &c.

aider and abettor formerly considered, ib.

before the fact, 30.

who is to be so considered, ib.

description of, in different statutes, 31.

the same person may be such accessory, and also a principal, ib.