the dwelling-house, and the 3 Will. and Mary, c. 9. only deprives aiders of clergy where the robbery is committed in "a shop or "warehouse belonging to the dwelling-house," that accessaries before the fact, and persons aiding a robbery in an out-house which is not either a shop or warehouse belonging to the dwelling-house, would still be entitled to his clergy. Sect. 11. And now the benefit of clergy is taken away from robbery generally by 3 and 4 Will. and Mary, c. 9. which enacts, "That all and every person or persons that shall rob any other person, or shall comfort, aid, abet, assist, counsel, hire, or com"mand any person or persons to commit such offence, shall not "have the benefit of clergy." + Sect. 12. And it has been held, that this statute excludes Danford and robbers from the benefit of clergy, in what place soever the Newton's Case, O. B. Sept. offence was committed. Session, 1780. Robbery in a Church or Chapel, + Sect. 1. By 23 Hen. 8. c. 1. s. 3. "No person or persons "which shall be found guilty for robbing any churches or chapels, or other holy places, shall be admitted to the benefit of clergy." + Sect. 2. It does not appear, that accessaries to the crime of 2 Hale, 333. sacrilege are ousted of clergy by any statute; and certainly clergy 366. was not taken away from sacrilege at common law. Sect. 3. It is said, that no sacrilege is within this branch of Kely. 59. 69. the statute that is not accompanied with an actual breaking of But see ante. the church, &c. Larceny from the Person, and Robbery. Larceny from the person of a man without putting him in fear, is done either, 1. Openly and avowedly before his face; or, 2. Privily, without his knowledge. Sect. 1. FIRST, Openly and avowedly before his face; as if Dyer, 224. one take off my hat from my head, and run away with it, or come 2 Roll. 154. into my shop and cheapen goods, and run away with them with- Raym. 275. Cromp. 34. out paying for them, which is agreed not to be robbery; and, as Dalt. c. 100. it seems, is more properly indictable as a trespass than felony, unless the offender were either unknown, or immediately fled the country if he were known; otherwise I have a remedy against him in the ordinary course of civil justice, and it seems rigorous to make such offences capital which probably may be sufficiently provided against by more gentle methods. (1) However, it is certain that all open larcenies from the person are within the (1) The case in Dyer, 224. was an indictment, quod vi et armis apud B. in viâ regiâ ibidem 40s. in pecuniis numerat, &c. and the judgment was, that it is not robbery if the person is not put in fear as by assault and violence. The case in Roll's Reports is where the fear was excited subsequent to the taking, and therefore only larceny. The case in Raymond, of running away with goods, after having benefit obtained the delivery, upon pretence of purchasing them, is expressly decided to be felony. And Dalton from Crompton only says, the tortious taking of another's goods without a title so to do, is but a trespass. These references therefore by no means prove that the offences mentioned are not felonies, if committed with a felonious intent.-Vide Hale's Summary, 73, 74, 75. Kely. 43. 70. 1 Sid. 254. 212 Repealed by 48 Geo. 3. c. 129. vide next section. 48 Geo. 3. c. 129. s. 2. LARCENY.-Larceny from the Person, and Robbery. Bk. 1. benefit of clergy, except such as are committed in a dwellinghouse, &c. to the value of 40s. 66 + As to THE SECOND POINT, viz. Of privately stealing from the person. † Sect. 2. By 8 Eliz. c. 4. it was enacted, "That no person "or persons which shall happen to be indicted or appealed for "felonious taking of any money, goods, or chattels, from the person of any other, privily, without his knowledge, in any "place whatsoever, and thereupon found guilty by verdict of "twelve men, or shall confess the same upon his or their arraign"ment, or will not directly answer to the same according to the "laws of this realm, or shall stand wilfully, or of malice or ob"stinately mute, or challenge peremptorily above the number of "twenty, or shall be upon such indictment or appeal outlawed, "shall from thenceforth be admitted to have the benefit of his "or their clergy, but utterly be excluded thereof, and shall suffer "death in such manner and form as they should if they were no "clerks." 66 σε 66 Several decisions on this statute took place while it remained in force, as to what should be considered privily and without the knowledge of the party, but they have now become unimportant, for by statute of 48 Geo. 3. c. 129. sect. 2. it is enacted," that " from and after the passing of this act, every person who shall "at any time or in any place whatever feloniously steal, take and carry away any money, goods, or chattels from the person of any other, whether privily without his knowledge or not, but "without such force or putting in fear as is sufficient to consti"tute the crime of robbery, or who shall be present, aiding and abetting therein, shall be liable to be transported beyond the seas for life, or for such term, not less than seven years, as the judge or court before whom any such person shall be convicted "shall adjudge; or shall be liable, in case the said judge or court "shall think fit, to be imprisoned only, or to be imprisoned and "kept to hard labour in the common gaol, house of correction, or penitentiary house, for any term not exceeding three years. In the case of one Charles Robinson and William Perry, who were convicted at Lancaster summer assizes, 1816, before Wood, baron, on an indictment under this statute, the following point was reserved. Whether the indictment was properly framed, inasmuch as it did not aver, in the words of the statute, that the stealing was from the person "without such force or putting in "fear as was sufficient to constitute the crime of robbery," that exception being part of the enacting clause, and not in a proviso? secondly, if the indictment was not good on the statute, whether it was good as for a common larceny; and, if good, whether the court ought not to arrest the judgment, it being a sentence of transportation for life, not warranted by a conviction of simple larceny? The judges held the conviction right, consequently the indictment good. 66 Robbery. ROBBERY is a felonious and violent taking away from the person of another, goods or money to any value, putting him in fear. In the explication whereof, I shall consider the following par 3 Inst. 68. ticulars: 1. What taking away will satisfy the word cepit in an indictment for this offence. 2. What shall be said to be a taking away from the person. S. What kind of taking shall be said to be violent. 4. In what respects robbery differs from other larcenies. 5. In what cases robbery, whether from the person of another or from his house is excluded from the benefit of clergy. As to THE FIRST POINT, viz. What taking away will satisfy the word cepit in an indictment for robbery. 1 Hale, 531. S. P. C. 27. Sect. 1. It seems clear, that he who receives my money by my 44 E. 3. 14. delivery, either whilst I am under the terror of his assault, or 4 H. 4. 3. afterwards while I think myself bound in conscience (1) to give it Dalt. c. 100. to him by an oath to that purpose, which in my fear I was com- Crompton, 34. pelled by him to take, may, in the eye of the law, as properly be 3 Inst. 68. said to take it from me, as he who actually takes it out of F. Cor. 464. pocket with his own hands. my Sect. 2. Neither can he who has once actually completed the 3 Inst. 60. offence, by taking my goods in such a manner into his possession, afterwards purge it by any re-delivery. The outrage offered to the rights of society doth not vary in its nature, be cause ineffectual in its consequences. (a) Therefore where a (a) Prin. P. L. robber, having taken a purse, returned it again, saying, “If you 286. "value your purse, take it and give me the contents;" but was seized before the money was re-delivered; he was found guilty; (b) (b) Peat's Case, for the continuance of the property in the possession of the rob- Cases C. L. ber is not required by law. (c) Sect. 3. But he who only attacks me in order to rob me, but does not take my goods into his possession, though he go so far as to cut off the girdle of my purse, by reason whereof it falls to the ground, is not guilty of robbery; but highly punishable at the common law by fine and imprisonment, &c. for so enormous a breach of the peace. 200. (c) 3 Inst. 69. S. P. C. 27. Cromp. 34. Dalt. c. 100. 1 Hale, 532. Pursey's Case, Sect. 4. Yet in some cases a 'man may be said to rob me, 1 Hale, 533, where in truth he never actually had any of my goods in his 534. 537. possession; as where I am robbed by several of one gang, and 1Andr. 116. one of them only takes my money; in which case, in judgment Crom. 34. of law, every one of the company shall be said to take it, in Dalt. c. 100. respect of that encouragement which they give to another, through the hopes of mutual assistance in their enterprize; nay, though they miss of the first intended prize, and one of them afterwards ride from the rest, and rob a third person in the same highway without their knowledge, out of their view, and then return to them, all are guilty of robbery, for they came together with an intent to rob, and to assist one another in so doing. As to THE SECOND POINT, viz. What shall be said to be taking away from the person. Sect. (1) This is not the true reason, but because the fear of that menace still continued upon him at the time he delivered the money. (1 Hale, 532.) S. P. C. 27. B. R. H. 107. Comyns, 478. 3 Inst. 68. 1 Hale, 533, Dalt. c. 100. Foster, 128. 4 Com. 242. Cro. L. 176. Parkins's Case, Cases Cro. L. 238. O. B. 1784. p. 71. Sect. 5. Not only the taking away a horse from a man whereon he is actually riding, or money out of his pocket, but also the taking of any thing from him openly and before his face, which is under his immediate and personal care and protection, may properly enough be said to be a taking from the person: and therefore he who having first assaulted me takes away my horse standing by me, or having put me in fear drives my cattle in my presence out of my pasture, or takes up my purse which in my fright I cast into a bush, or my hat which fell from my head, or robs my servant of my money before my face, may be indicted as having taken such things from my person. Sect. 6. But the taking must be subsequent to the fear; for fear is the distinguishing ingredient between robbery and other larcenies. Therefore where a thief clandestinely stole a purse, and, on its being discovered in his custody, denounced vengeance against the party if he spoke of it, and then rode away, it was held to be simple larceny only, and not robbery; because the fear excited by the menaces of the thief was subsequent to the act of taking the purse. So where several men find another apparently intoxicated, and swearing he shall go home, they drag, abuse, kick him, and clandestinely take his money, this is no robbery; for no demand is made of money, nor any fear excited for the purpose of obtaining it. As to THE THIRD POINT, viz. What kind of taking shall be said to be violent. Sect. 7. Wherever a person assaults another with such circumstances of terror as put him into fear, and cause him by reason of such fear to part with his money, the taking thereof is adjudged robbery, whether there were any weapon drawn or not, or whether the person assaulted delivered his money upon the other's command, or afterwards gave it him upon his ceasing to use force, and begging an alms; for he was put into fear by his assault, and gives him his money to get rid of him. + Sect. 8. But it is not necessary that the fact of actual fear should either be laid in the indictment, or be proved upon the trial, it is sufficient if the offence be charged to be done violenter et contra voluntatem. And if it appear upon the evidence to have been attended with those circumstances of violence or terror, which in common experience are likely to induce a man to part with his property against his consent, either for the safety of his person, or for the preservation of his character and good name, it will amount to a robbery. (2) + Sect. 9. Accordingly, to snatch a basket of linen suddenly from the head of another; or to pull an ear-ring from the ear of a lady; or if an officer feloniously take money from a prisoner (2) But if a man part with his money, not under the influence of terror at the time he parts with it, but with a view to bring the offenders to justice, this has been ruled not to be robbery. Reave's Case, O. B. June, 1794. (2 East, p.734.) So also where a man has been induced to part with his money under the threat that the party to not whom he gave it was the head of a gang of rioters, who had at the time committed great devastation in Birmingham, and that unless he gave some money his house should be destroyed the next morning-this was ruled to be robbery, although there was no fear in the party for his personal safety. (2 East, P. C. 729.) not to take her to gaol, under colour of authority, &c. without in Lapler's Case, either case having made any express demand, have been ruled Cases C. L. sufficient acts of violence to constitute the crime of robbery. 264. Gascoign's Case, Cases Cro. Law, 234. Raym. 297. Dalt. 489. Prin. P. L. 286. + Sect. 10. And to obtain property by threatening to accuse Hickman's another of having been guilty of an unnatural crime, has been C. L. 231. Case, Cases held, upon the solemn opinion of all the judges, to be an act Foster, 129. sufficient to raise, in the mind of the party menaced, such a ter- Prin. P. L. 287. ror and apprehension of mischief as to constitute the offence by putting in fear ; (3) for the law, in odium spoliatoris, will presume fear where there appears to be so just a ground for it. 123. 128. + Sect. 11. But the taking must be against the will of the Macdaniel's person robbed; and therefore if A. agree to be robbed by B. Case, Foster, and A. places himself in a certain place for that purpose, and B. pursuant to the agreement take the goods from him by actual force, yet it is no robbery. + Sect. 12. But if a person, knowing a certain highwayman Norden's Case, infests a particular road, go that road, and, in order to detect him, Foster, 129. suffer himself to be robbed by him, the property shall be considered as taken not only from his person, but against his will. Sect. 13. And some have gone so far as to hold, that if a man Crom. 34, 35. meeting another going with his goods to market in order to sell Dalt, c. 100. them, compel him to sell them to him against his will, he is guilty of robbery, though he give for them more than they are worth; but perhaps this opinion is too severe, because the grievance to the party seems rather to proceed from the perverseness of his humour, than from any real injury done to him; and there seems to be no such enormity in the intention of the wrongdoer as is implied in the notion of felony. Sect. 14. However it is certain, that the claim of property in 1 Hale, 509. the thing taken away, without any colour, is no manner of ex cuse. As to THE FOURTH POINT, Wiz. In what respects robbery differs from other larcenies. Sect. 15. FIRST, No other larceny shall have judgment of S. P. C. 27. death, unless the thing stolen be above the value of twelve- Crom. 33. pence; but robbery shall have such judgment, how small soever the value may be of the thing taken away. Dalt. c. 100. Sect. 16. SECONDLY, Other larcenies, whether from the per- s Inst. 68. son or not, shall not be supposed to be done with violence or Kelynge, 70. terror, but robbery is always laid as done on an assault with violence, and putting the party in fear, which is properly thus expressed in an indictment, à persona J. S. violenter et felonice cepit et asportavit, in magnum pradicti J. S. terrorem. Sect. 17. THIRDLY, But they all agree in this, that the of fenders had the benefit of clergy at the common law. As to THE FIFTH POINT, viz. In what cases robbery from the person of another is deprived of the benefit of clergy. (3) See the arguments of the judges in Rex v. Jones, E. P. C. 714. upon the question of putting + Sect. in fear, where Lord Mansfield says putting in fear is constructive violence. |