State v. . Burke

ByNüM, J. Robbery at the common law, is “ the felonious taking’ of money or goods of any value from the person of another or in his presence against his will, by violence or putting him in fear.” 2 East Pl. 707. From this definition of the books it is clear that the instructions asked for by the prisoner, as to what constitutes the crime of robbery, were properly refused, and that the instructions given by his Honor, were substantially correct, except where he erred in favor of the prisoner. Unlike larceny, the gist of the offence in robbery is not in the taking, but in the force or terror used, and the rule is different in the two offences, both as to the value of the anide taken and as to what constitutes a sufficient taking. lienee, when his Honor charged, in accordance with the fact proved, that if the prisoner kept the money in his hands, “ one minute,” it was a sufficient taking, although he then threw down the money and abandoned it. he was supported by all the authorities. Thus, where a lady was coming out of an Opera bouse and the prisoner snatched at her ear-ring and tore it from her ear and it fell into her hair where it was found on her return home, it was adjudged a sufficient taking to constitute robbery. Rex v. Lapier, 2 East. Pl. 557. And where the prisoner took the prosecutor’s purse and immediately released it, saying, “ if you value your purse you will please take it back again and give me the contents of it,” and the prosecutor took it back, and the prisoner was apprehended at that moment, it was held a sufficient taking. Rex v. Peal, 1 Leach 228. Ros. Crim. Pl. 837. Nor is it necessary in this *88 offence, to prove both violence and the putting in fear, as his Honor charged. Either is sufficient. If the man is knocked down and lies insensible while the thief rifles his pockets, this is robber}^ though there is no putting in fear. And where there is no violence and fear becomes the essential ingredient, the law in odium spoliatoris, will presume it, where there appears just ground forit. 2 East. P. C. 711. State v. Cowan, 7 Ired. 289. But in our case there were both violence and the putting in fear. Another exception is that his Honor charged that if the offence was committed at or near the public highway, it was highway robbery. In Cowarts case, the indictment charged that the robbery was committed in the highway, and it tvas there held that the offence must be proved as laid, and that it was incompetent to give evidence that the robbery was near the highway. Oftr statute, Rev. Code, eh. 84, sec. 2, makes the offence to consist in “ robbing any person in or near any public highway.” Without stopping to inquire whether an indictment following the very words of the statute and laying the offence “ in or near ” the public highway, would be good, it is sufficient to say, that the indictment in this case charges the offence to have been committed in the highway, which is the most precise and unobjectionable, if not the only proper way of laying it, instead of in the disjunctive.. No evidence was offered that the robbery w'as near the highway, but the whole testimony was confined to the offence committed in the highway, the facts of which were not controverted. His Honor submitted the case to the jury upon a hypothesis which was not supported by any evidence, but unless it appears to the Court that the prisoner’s case was prejudiced by it, a new trial cannot be awarded. No harm could possibly result to the prisoner from this inadvertence in the charge, because all the evidence was as to the occurrence in the road, and if the jur) acted at all, it could only have been, upon what W'as in evidence If they believed the testimony the prisoner was guilty at charged in the indictment, and if they did not believe it, there *89 / was nothing for them to go upon. Had there been any | evidence given of a robbery near the highway, upon an indict-1 ment for robbery in the highway, the charge of the Judge would have been erroneous and the prisoner entitled to a new trial. The prisoner moved in arrest of judgment because the public highway was not sufficiently described in the indictment. The answer is, that the form adopted in this case, follows the ancient and approved precedents. However it might be in England, where there are several kinds of highways, the prisoner could not have been misled in this State, where there is but one kind of highway, which is well understood in the law and in fact, to be a public road, over which all citizens may go at will, on foot, on horse back, or in carts or carriages. It was also moved in arrest of judgment, that the money or property taken, was not sufficiently described in the indictment. This is not an open question, for in the State v. Thompson, 71 N. C. 14G, which was a case of larceny, the property stolen was of the same kind, and was described in the same way, as in this indictment, and it was held to be sufficient. In robbery the kind and value of the property is not material, because force or fear is the main element of the offence. Thus, where a man was knocked down and his pockets rifled, but the robbers found nothing except a slip of paper containing a memorandum, an indictment for robbing him of the paper, was held to be maintainable. Rex v. Bingley 5, C. & P. 602. The last exception of the prisoner is, that the Court sentenced him under the provisions of chap. 32, sec. 13, Bat. Rev. instead of the 29th section of the same chapter. The 13th section provides for the punishment of persons convicted of crimes which were punishable with death, by the laws existing at the time the present Constitution went into effect. The 29th section provides for the punishment of offences which were puniriiable with public whipping or other corporal punishment. at the time the present Constitution went into effect. *90 PoM tim<-„ ' of í í I < i ! s' i*, the public highway, was a capital felony, at that s 1 i. flic subject of punislnnent under the 13th section note. "■ i¡. no error. '.h'RIAM. Judgment affirmed.