Shinn v. State.

The second count charged the same persons with stealing, taking and carrying away three ten-dollar national bank bills, describing such bills in the same manner as in the first count.

Shinn, the appellant, plead not guilty, and upon a trial by a jury was found guilty of the robbery charged in the first count of the indictment. His punishment was fixed at a fine of one dollar and at imprisonment in the State prison for two years.

Disregarding a motion for a new trial the court rendered a judg ment of conviction upon the verdict.

One of the causes assigned for a new trial was the insufficiency of the evidence to sustain the verdict, and that constitutes the principal question to which our attention has been invited here.

Ithamar McCarty was the prosecuting witness, and the only witness, as to most of the material facts relied on by the prosecuting attorney for a conviction.

He testified that late in the evening of August 14, 1878, he went from Hancock county to the city of Anderson, in the county of Madison, to sell some flax-seed for his brother, Jasper N. McCarty, that he received a check for thirty-five dollars and eighty-eight cents, the value of the flax-seed, upon a bank of that city; that next morning, after he had received the money on the check, he sat down or the step at a store door to look over the money and to see that it was all right; that while so engaged a man came up in front of him and engaged him in conversation; that this man, who was the person designated in the indictment as the person unknown to the grand jury and who was referred to upon the trial as the "padlock man," made some inquiry as to his (witness) future business intentions, saying that he had for sale a very remarkable padlock, denominated a burglar-proof padlock, or something of that kind, and suggested that he, said McCarty, should become an agent for the sale of this padlock; that this unknown man, after some further conversation, left witness to get a specimen lock for his examination and further information; that after an apparent second effort to find a lock the padlock man came to witness at an appointed place with a lock; that thereupon, he and witness went walking together upon one of the streets, during which time he explained to witness how to unlock this specimen lock, claiming that no person not previously instructed could unlock it; that they soon came to the door of a church where they sat down upon the step in the shade and continued the discussion of the merits of the lock; that soon after they

Shinn v. State.

were thus seated the appellant, who was a stranger to witness, came up in front of them and inquired when the train left for Rushville, remarking that his father who lived in Marion, in Grant county, had had two horses stolen and that he was in pursuit of the horses; that the padlock man then handed the lock to the appellant with a remark that if his father had had such a lock on his barn as that, his horses would not have been stolen; that the appellant taking the key made a seeming effort to unlock the lock, but failing, said the lock was a sham; that being assured by the padlock man that it was a very easy thing to do if he only understood its workings, the appellant made another apparent effort to unlock the lock, but again failing he handed the lock back, saying he would bet fifty dollars there was not a man in the State who could unlock that lock; that witness pulled out of his pocket three ten-dollar national bank bills, and holding them in his hands remarked that if he were a betting man he would bet that amount that he could unlock the lock very easily; that at that point witness became suspicious that the padlock man was too anxious for him to bet, and was about to return these bills to his pocket when the padlock man snatched them from his hand and handed them over to the appellant, who started off on a run; that the padlock man then took witness by the arms and shoved him over the steps in front of the church; that witness getting loose ran after appellant and caught him by the arm and demanded a return of the money; that the padlock man again caught hold of witness, about which time the appellant handed back to witness a ten-dollar bill, requesting him to accept it as a compromise; that witness still hung on to appellant insisting on a return of the remaining twenty dollars, when another tussle ensued, in which all three engaged, but the attention of others being attracted by this time, the padlock man very suddenly disappeared from the city and the appellant was soon afterward arrested.

This we regard as a fair synopsis of so much of the testimony of the prosecuting witness, as is necessary to indicate the character of the transaction for which the appellant was convicted, as above set forth.

The synopsis above given embraces the substantial portions of the testimony which went most strongly against the appellant.

It is said that the principle of robbery is violence, but it has been held that actual violence is not the only means by which a robbery may be effected; that it may also be accomplished by fear, which

Shinn v. State.

the law considers as constructive violence. Donnally's Case, 1 Leach, 229; Long v. The State, 12 Ga. 293.

With respect to the degree of actual violence necessary to constitute a robbery, more than a sudden taking or snatching must be shown.

Archbold's Treatise on Criminal Practice and Pleading gives several illustrations in support of this rule, and concludes: "So that the rule appears to be well established, that no sudden taking or snatching of property from a person unawares is sufficient to constitute robbery, unless some injury be done to the person, or there be some previous struggle for the possession of the property, or some force used in order to obtain it." Vol. 2, p. 1290; see, also, 2 Whart. Crim. Law, § 1701.

The taking must not precede the violence or putting in fear. In other words, the violence or putting in fear will not make a precedent taking, effected clandestinely, or without either violence or putting in fear, amount to a robbery. 2 Russ. on Crimes, 108; 2 Archb. Crim. Prac. and Plead. 1289.

Applying the well-established rules of law thus enunciated to the cause in hearing, it is manifest that a case of robbery was not made oat against the appellant on the evidence. Brennon v. The State, 25 Ind. 403; Hart v. The State, 57 id. 102.

The evidence tended to show the fraudulent and felonious obtaining of money from the prosecuting witness by means of a previouslyarranged trick or contrivance, but did not sustain the charge of robbery contained in the indictment. Huber v. The State, 57 Ind. 341.

The judgment is reversed, and the cause remanded for a new trial. The clerk will give the proper notice for the return of the prisoner. VOL. XXXI — 15

Taylor v. Fickas.

TAYLOR V. FICKAS.

(64 Ind. 167.)

Water and water-course – obstruction of surface overflow of water-course —— action –

administrator.

The owner of land planted a row of trees on his own land, and along the division line between his land and that of an adjoining proprietor, the effect of which was to obstruct the passage of drift-wood carried upon the land of the adjoining proprietor, by the overflow of a water-course adjacent to the lands of both proprietors, to the injury of such adjacent land. Held, that no action would lie therefor.

*

An administrator has no right of action for injury to the land of his intestate.

A

CTION for obstruction of water.

The opinion states the case.

The defendant had judgment below.

A. L. Robinson, for appellant.

J. M. Shackelford and R. D. Richardson, for appellee.

BIDDLE, J. The appellant entitled this case, "Samuel C. Taylor, administrator of the estate of Martha E. Taylor, deceased," etc., and filed the following complaint:

"Samuel C. Taylor, administrator aforesaid, complains of John H. Fickas, and says, that on the 11th day of December, 1866, the said Martha E. Taylor, whose name was then Martha E. James, became the owner in fee simple, and entered into possession of the following-described tract of land, viz.: forty-five and ninety-one one-hundredths acres, out of the middle of the north-east quarter of section No. eleven (11), in township No. seven (7) south, range No. ten (10) west, being that part of said quarter section set off and allotted to Mrs. Emily R. James, as widow of Nathaniel J. James, 'n a suit for partition in the Court of Common Pleas of said county,

*To same effect: Hoyt v. City of Hudson (27 Wis. 656), 9 Am. Rep. 473. Contra: Tootle v. Clifton (22 Ohio St. 247), 10 Am. Rep. 732; Ogburn v Connor (46 Cal. 346), 13 Am. Rep. 213. A municipal corporation may not, by change of grade of street, turn surface water on adjacent land: Pettigrew v. Village of Evansville (25 Wis. 223), 3 Am. Rep. 50; City of Aurora v. Reed (57 Ill. 29), 11 Am. Rep. 1; City of Dixon v. Baker (€5 Ill. 518), 18 Am. Rep. 591, and note, 593; Lynch v. Mayor of New York (N. Y. Ct. App.), 19 Alb. L. J. 175.

Taylor v. Fickas.

during the November term, 1859, as appears by the eport of commissioners in said suit and the plat filed with the said report, all of which is recorded in Partition Record N. 1 on page No. 108, to which the plaintiff refers for a more perfect description of said land situated in said county, and that the said Martha E. continued to own and possess the said land until the 7th day of December, 1874, when she departed this life, intestate, leaving the said plaintiff, her husband, and sole heir of her said estate, and afterwards, to wit, on the 11th day of April, 1877, the plaintiff was in due form appointed administrator of the estate of the said decedent.

"The plaintiff further avers that during the year 1862 the defendant became the owner and entered into possession of the followingdescribed tract of land, viz.: Fifty-nine acres off of the west side of the said north-east quarter of said section eleven (11) lying west of and adjoining the said land of decedent; that said tracts of land lie in strips, each half a mile in length running north and south, and are situated near the Ohio river, in said county, and are a part of the overflowed bottom lands near and adjacent to said river, and that from time immemorial a large extent of country in the vicinity of said tracts of land, and including the same, has been and still is liable to be overflowed with water from the said river after and during excessive rains in the valley of the said river; that during said times of high water and overflow the water from the said river runs over the said tracts of land with a strong and rapid current, the general current of the same running from east to west, first over the land of decedent and then over that of the defendant, the water in said current over said land varying in depth from two feet to ten feet, and that the water (which is in fact a portion of the said river) has run in that manner during seasons of high water and during times of overflow from time immemorial, and that the same would have continued so to run but for the wrongful acts of the defendant hereinafter described.

"The plaintiff further avers that during all the times of high water and overflow of said river great quantities of drift-wood have floated in the said current over the said tracts of land without injury to the same, and would have continued so to float but for the wrongful acts of the defendant hereinafter described.

"The said tracts of land during the years hereinafter named were cleared and in cultivation and of great value, to wit, of the value of 8.00 per acre; that the defendant to protect his said tract of land