injured or destroyed.26 And where the property is an animal, it has been held that the act must amount to a killing.27 This view, however, is not the better one.28 § 572. The indictment.-The nature and character of the injury should be alleged with sufficient certainty to identify the transaction and accurately describe it in detail.29 The malice of the accused should be alleged and the name of the owner of the property stated.30 Where the property belongs to an unincorporated company the names of the members should be stated.31 But it is not necessary to allege the value of the property unless it is material as to the penalty.32 26 Wait v. Green, 5 Parker (N. Y.) 185; Davis v. Chesapeake & O. Ry. Co., 61 W. Va. 246, 56 S. E. 400, 9 L. R. A. (N. S.) 993. 27 State v. Manuel, 72 N. Car. 201, 21 Am. Rep. 455. 28 Oviatt v. State, 19 Ohio St. 573. 29 Nicholson App. 31. v. State, 3 ex. 303 Bish. New Crim. Proc. (2d ed.), § 839; Lunsford v. State (Ga. App.), 94 S. E. 80. 31 Staaden v. People, 82 Ill. 432, 25 Am. Rep. 333. 32 Caldwell v. State, 49 Ala. 34; State v. Heath, 41 Tex. 426. § 575. Definition and essentials.-Robbery is the felonious taking of personal property of another from his person, or in his presence, against his will, by violence or intimidation. It is an aggravated form of larceny, and is a crime, both against the person and against property. The essentials of this crime are as follows: (1) The taking must be done with intent to steal the property. (2) The property taken must be capable of being stolen. (3) There must be a caption and asportation of the property the same as in larceny. (4) The property must be taken from another's person, or in his presence. (5) The taking must be by violence or intimidation. The first three essentials of robbery enumerated above, are also requisites of larceny; and as they are fully discussed heretofore in the treatment of that subject a further discussion of them here is unnecessary.1 § 576. Taking from another's person, or in his presence. -To constitute robbery, the taking must be from another's person, or in his presence.2 In an English case the defendants 1See ante, §§ 533, 534, 560. 2 United States v. Jones, Fed. Cas. No. 15494, 3 Wash. (C. C.) 209; Clary v. State, 33 Ark. 561, Derby's 3 were convicted of robbing another of nine pounds. The proof showed that the prosecutor while riding on horseback passed the accused on the highway and was asked by one of them to change a half crown; that he took from his pocket several pieces of coin; that one of the accused thereupon struck his hand gently and caused the money to fall to the ground; that the prosecutor thereupon dismounted to pick it up, but was prevented from so doing by threats of the accused that they would knock his brains out if he did so; that the accused thereupon picked up the money, got on their horses and rode away. In another case, the defendants were convicted of robbing the prosecutor of a chest and several hundred dollars contained therein. The proof showed that while the prosecutor was in the smoke-house, fifteen feet back of his residence, one of the defendants, holding a gun in his hands, stepped up and said that the first man who put his head out would get it shot off; that while the prosecutor was in the smoke-house no one touched him or said anything about his money, but that, by peeping through the cracks he saw a rather stout man standing just outside facing toward him, with a gun in his hand ready to shoot; that in the meantime the other defendant went to the prosecutor's residence and took and carried away a chest and several hundred dollars State, 90 Ga. 701, 17 S. E. 628, 35 Am. St. 242; Clements v. State, 84 Ga. 660, 11 S. E. 505, 20 Am. St. 385; Bussey v. State, 71 Ga. 100, 51 Am. Rep. 256; State v. Miller, 83 Iowa 291, 49 N. W. 90; State v. Calhoun, 72 Iowa 432, 34 N. W. 194, 2 Am. St. 252; State v. Miller, 53 Kans. 324, 36 Pac. 751; State v. Jenkins, 36 Mo. 372; Hill v. State, 42 Nebr. 503, 60 N. W. 916; Hope v. People, 83 N. Y. 418, 38 Am. Rep. 460; Crews v. State, 3 Cold. (Tenn.) 350; Williams v. State, 12 Tex. App. 240; Reges v. State, 51 Tex. Cr. 420, 102 S. W. 421; State v. McAllister, 65 W. Va. 97, 63 S. E. 758, 131 Am. St. 955; Rex v. Francis, 2 Strange 1015, 2 East P. C. 708; Reg. v. Selway, 8 Cox Cr. C. 235; 2 Russ. on Crimes (9th Am. ed.) 106, 107; 2 Roscoe's Crim. Ev. (8th ed.), 935, 936. See also note to 135 Am. St. 474. 3 Rex v. Francis, 2 Strange 1015, 2 East P. C. 708. contained therein, from under a bed a few feet from the front door. On appeal, the conviction was affirmed.* The test, as to whether the property is taken "in his presence," or not, is whether, at the time of the caption, it is virtually under the protection of his person or not. Actual presence in the narrow sense of the term, is not essential. Thus, where the defendants were convicted of assault with intent to rob a station and the proof showed that they entered a car and attacked the watchman and intended to blow open a safe and take property therefrom, the conviction, on appeal, was affirmed, on the ground that at the time the property was attempted to be taken it was virtually under the protection of the agent's person.5 § 577. The caption must be by violence or intimidation.The property must be taken by violence or by putting the other party in fear." Where a thief abstracts money from another's pocket by stealth he is not guilty of robbery. His offense is compound larceny. Even where the taking is more forcible, as where the thief snatches money from another's open hand, or snatches a shawl from a woman's shoulders. without tearing it or injuring the woman, he is not guilty of robbery. As stated by Baron Garrow, "The mere act of 4 Clements v. State, 84 Ga. 660, 20 Am. St. 385; State v. Kennedy, 154 Mo. 268, 55 S. W. 293; People v. Madas, 201 N. Y. 349, 94 N. E. 857, Ann. Cas. 1912 B, 229; note to 46 L. R. A. (N. S.) 1149; 2 Bish. Crim. L. (8th ed.), §§ 1177, 1178; Whart. Crim. L. (11th ed.), § 1082. 5 O'Donnell v. People, 224 Ill. 218, 79 N. E. 639, 8 Ann. Cas. 123, Derby's Cases 331. 6 Brown v. Commonwealth, 135 Ky. 635, 117 S. W. 281, 135 Am. St. 471, 21 Ann. Cas. 672; People v. Nolan, 90 N. E. 140, 34 L. R. A. (N. S.) 301n, Ann. Cas. 1912 B, 401n. See also note to 44 L. R. A. (N. S.) 637; State v. McDonald, 89 N. J. L. 421, 99 Atl. 128; People v. Pasqueria, 30 Cal. App. 625, 159 Pac. 173; Gordon v. State, 125 Ark. 111, 187 S. W. 913, Ann. Cas. 1918 A, 419; People v. Ferrara, 31 Cal. App. 1, 159 Pac. 621. 7 Fanning v. State, 66 Ga. 167; Spencer v. State, 106 Ga. 692, 32 S. E. 849; Territory v. McKern, 3 Idaho 15, 26 Pac. 123; Shinn v. State, 64 Ind. 13, 31 Am. Rep. 110; State v. Miller, 83 Iowa 291, 49 N. W. 90. 8 taking, being forcible, will not make this offense highway robbery. To constitute the crime of highway robbery, the force used must be either before, or at the time of the taking, and must be of such a nature, as to show that it was intended to overpower the party robbed, and prevent his resisting, and not merely to get possession of the property stolen. "If a man, walking after a woman in the street, were by violence to pull her shawl from her shoulders, though he might use considerable violence, it would not, in my opinion, be highway robbery, because the violence was not for the purpose of overpowering the party robbed; but only to get possession of the property." In this case the defendant snatched the prosecutor's watch-chain, as he was going along the street, and with considerable force jerked it from his pocket, and was convicted of larceny. This case was decided in 1824, and is in harmony with the very early view, as well as the modern view. After Foster's day, however, the doctrine was extended so as to make snatching a thing out of a person's hand sufficient violence to constitute the act robbery. Later, in Plunkett Horner's case, it was held that snatching an umbrella out of a lady's hand as she was walking along the street was not robbery. In this case the court says: "It had been ruled about eighty years before, by very high authority, that snatching anything from a person unawares constituted robbery; but the law was now settled, that unless there was some struggle to keep it, and it were forced from the hand of the owner, it was not so. This species of larceny seemed to form a middle case between stealing privately from the person, and taking by force and violence." In Lapier's case 10 the defendant snatched an earring from a lady's ear with such violence as to draw blood from her ear and to otherwise hurt it considerably, and the offense was held robbery. In Davis' case11 the defendant took hold of a gen 9 8 Rex v. Gnosil, 1 Car. & P. 304. 92 East P. C. 703. 10 1 Leach 320; 2 East P. C. 557, 708. 112 East P. C. 709. |