The punish ment. Indictment On the trial should it appear that any of the circumstances of robbery are wanting, but the taking is proved, the defendant may be acquitted of the aggravated offence, and found guilty of simple larceny, R. T. H. 115, Com. Rep. 478, 2 Stra. 1014. Punishment. Robbery was anciently considered as one of the most enormous of felonies, 3 Inst. 69: it was excluded from the benefit of clergy by 23 Hen. VIII. c. 1. and 1 Edw. VI. c. 12. s. 10; not indeed in every case, but when committed in a dwelling-house or in or near the highway; it was therefore then necessary so to describe the offence in the proceedings. But the 3 and 4 W. & M. c. 9. takes away clergy from principals and accessaries before the fact in robbery, in whatever place it is committed; and therefore it is now not necessary, in any case, to state the fact in an indictment, though, if averred and not proved, it may be rejected as superAuous, 2 East P. C. 784, 5. That A. O. late of, &c. on, &c. with force and arms at, &c. in for a robbery. the king's highway, there, in and upon one A. J in the peace of (a) God and of our said lord the king then and there being, feloniously (b) did make an assault, and him the said A. J. in bodily fear and danger of his life (c) in the highway aforesaid then and there feloniously did put, and one gold watch of the value of eighteen pounds (d) of the goods and chattels of him the said A. J. from the person and against the will of the said A. J. in the highway aforesaid, then and there feloniously and violently did steal, take, and carry away, against the peace of our said lord the king, his crown and dignity. For a robbery on highway and stealing a book, money, and bill of ex change. (e) That C. H. late of, &c. G. B. late of, &c. T. M. late of, &c. on, &c. with force and arms, in, &c. aforesaid, in the king's highway, there, in and upon the reverend H. C. O. clerk, in the peace of God and our said lord the king, then and there being, violently (f) and feloniously did make an assault, and him the said H. C. O. in bodily fear and danger of his life in the king's highway aforesaid then and there feloniously did put, and from the person and against the will of the said H. C. O. in the king's highway aforesaid, then and there violently and feloniously did steal, take, and carry away, one leather purse of the value of two shillings, and one piece (a) See other precedents, Burn J. Robbery. Pleader's Assistant, 167. Cro. C. C. 431. 4 Wentw. 51. 251. Starkic, 449. (b) This word is necessary here, 2 Leach, 564. (c) It seems doubtful whether this is necessary, though it is safer to insert it, Fost. 128. ante 805. (d) As to the mode of stating the property, see post as to lar ceny. (e) This indictment was settled by a very eminent crown lawyer. See Leach, 810. (f) This word seems unnecessary, 2 East P. C. 783, 4. ante 806. of the current gold coin of this realm, called a seven shilling piece of the value of seven shillings, of the goods, chattels, and monies, of the said H. C. O. and one bill of exchange for the payment of money, to wit, for the payment of the sum of eighteen pounds, of the value of eighteen pounds, the same bill of exchange being the property of the said H. C. O. and the said sum of eighteen pounds payable and secured by and upon the same, being then, to wit, at the time of committing the felony aforesaid, unsatisfied to the said H. C. O. the proprietor thereof against the form, &c. (g) and against the peace of our said lord the king, his crown and dignity. That E: L. late of, &c. and H. T. late of, &c. on, &c. with force For robbery in and arms, at, &c. aforesaid, in the dwelling house of one J. J. there a dwelling house. (h) situate, in and upon A. the wife of the said J. J. in the peace of God and our said lord the king then and there being, feloniously did make an assault, and her the said A. in bodily fear and danger of her life, in the said dwelling house, then and there feloniously did put, and one linen pocket of the value of one penny, and three pieces of gold coin, of the proper coin of this realm called guineas, of the value of three pounds and three shillings, of the goods, chattels and monies of the said J. J. from the person and against the will of the said A. in the dwelling house aforesaid, then and there violently and feloniously did steal, take, and carry away, against the peace, &c. That W. F. late of, &c. after the first day of May, in the year of For assault our Lord one thousand seven hundred and thirty four, to wit, on, with intent to (g) This is not necessary, ante 806, 7. (h) See similar precedent, Cro. C. C. 438. (2) This indictment was settled by a very eminent crown lawyer. See other precedents, 2 Leach, 703. Cro. C. C. 67. 2 Starkie, 404. The offence is founded on 7 Geo. II. c. 21. which enacts, "that if any person or persons from and after the 1st May, 1784, shall, with any offensive weapon or instrument, unlawfully or maliciously assault, or shall by menaces or in any forcible or violent manner, demand any money, goods, or chattels, of or from any other person or persons with a felonious intent to rob or commit robbery upon such person or persons, that then, and in every such case, all rob by mena ces, &c. &c.(i) &c. with force and arms, at, &c. in and upon one F. B. K. in the peace of God and our said lord the king then and there being, unlawfully, maliciously, and feloniously did make an assault, and that the said W. F. then and there with menaces and in a forcible and violent manner, feloniously did demand two guineas of the lawful gold coin of this realm, of the money of him the said F. B. K. of and from the said F. B. K. with a felonious intent the said money of the said F. B. K. from the person and against the will of the said F. B. K. then and there feloniously and violently to steal, take, and carry away, against the form of the statute, &c. and against the served, is framed in the disjunctive, 2 East P. C. 418, 9. It may, however, be collected, that the intent must be to rob the party assaulted, and that it will not suffice if the attack be made on one, and the design be to plunder another. Thus, if a highwayman calls to a coachman to stop, and presents the pistol at him, evidently intending to rob the parties within the carriage which he is driving, his offence will only be a misdemeanor at common law, I Leach, 19. 330. 1 East P. C. 418. It is' now said that if, the assault be made with an offensive weapon, a demand must be made; but if no such instrument were used, a demand is requisite: see the subsequent cases on the form of the indictment. The Indictment must exactly pursue the language of the statute, but it is not necessary that all the terms there made use of, should be inserted. Thus when the assault is the only act charged, the terms "unlawfully and maliciously," must be introduced, because they are connected with it; but where a violent and forcible demand is well laid, these words will be dispensed with, as the disjunctive or intervenes, 1 East P. C. 420. The indictment must either charge an assault, with an offensive weapon with intent to rob, or a demand with the same design, in the technical language of the act; and therefore if it merely allege that the defendant "unlawfully, maliciously, and feloniously made an assault on C. D. and him the said C. D. unlawfully and maliciously did menace, by menacing to blow his brains out, with a felonious intent the monies of the said C. D. to steal, take, and carry away," it will be defective, because, in these allegations, there is no averment that the assault was made with an offensive weapon, nor any statement that money was demanded; though either of these would have been sufficient, 1 Leach, 267. So it will not suffice to state, that the defendant made an assault with intent feloniously to steal, aud if the offence be thus imperfectly described in the commitment, the party accused may be admitted to bail, 5 T. R. 169. 2 Leach, 583: for the intent charged must be to commit robbery, and, therefore, the term violently must be added to feloniously, or it must be otherwise shewn that the taking, if accomplished, would have been effected by force or terror, 2 Leach, 702. In the description of the weapons, the rules will apply which were laid down in the case of homicide: the same latitude of proof is also admitted; so that if the weapon be stated in the indictment as a large stick, and it turn out to be a large stone thrown by the prisoner, the defendant may be convicted, 1 East P. C. 421. peace, &c. And the jurors, &c. do further present, that the said Second count. W, F. after the said first day of May, in the year of our Lord one thousand seven hundred and thirty four, to wit, on the said, &c. with force and arms, at, &c. aforesaid, in and upon the said F. B. K. in the peace of God and our said lord the king then and there being, unlawfully, maliciously, and feloniously did make an assault, and that the said W. F. then and there with menaces feloniously did demand two guineas of the lawful gold coin of this realm, of the money of him the said F. B. K. of and from the said F. B. K. with a felonious intent the said money of the said F. B. K. from the person and against the will of the said F. B. K. then and there feloniously and violently to steal, take, and carry away, against the form of the statute, &c. and against the peace, &c. And the jurors, Third count. &c. do further present, that the said W. F. after the said, &c. to wit, on the said, &c. with force and arms, at, &c. aforesaid, that is to say, in the parish of in the said ward of, &c. aforesaid, in and upon the said F. B. K. in the peace of God and our said lord the king then and there being, unlawfully, maliciously, and feloniously did make an assault, and that the said W. F. then and there in a forcible and violent manner, feloniously did demand two guineas of the lawful gold coin of this realm, of the money of him the said F. B. K. of and from the said F. B. K. with a felonious intent the said money of the said F. B. K. from the person and against the will of the said F. B. K. then and there feloniously and violently to steal, take, and carry away, against the form of the statute, &c. and against the peace, &c. [Same as in the last precedent in the commencement.] With The like with force and arms, at, &c. in and upon C. D. in the peace of God an offensive weapou. (j) and of our said lord the king then and there being, unlawfully, maliciously, and feloniously, did make an assault with a certain offensive weapon, to wit, a pistol, which he the said A. B. in his right hand then and there had and held, with a felonious intent the monies of the said C. D. from the person and against the will of the said C. D. feloniously and violently to steal, take, and carry away, against the form, &c. and against the peace, &c. (See another from Cro. C. C. 8th Ed. 67. 2 Stark. 404. RAPE. (k) The offence. PRELIMINARY NOTES. I. On Women above the age of Consent. The offence. Rape is the carnal knowledge of a female, forcibly and against her will, 3 Inst. 60. 4 Bla. Com. 210. The only difficulty which arises upon this definition, consists in the meaning which ought to be attributed to the words carnal knowledge; some judges having supposed that it is sufficient to shew penetration alone while others have contended that the offence is not complete without emission; but it seems to be agreed by all that the latter without the former will not suffice. Lord Coke, in his reports, supposes both circumstances must concur, 12 Co. 37. though he does not express himself so clearly in his Institutes. Hawkins, without citing any authority or hinting a doubt, declares the same opinion, Hawk. b. 1. c. 41. s. 3. Hale, however, differs from both, and considers the case in Coke's Reports as mistaken, 1 Hale, 628. In more modern times, prisoners have been repeatedly acquitted in consequence of the want of proof of emission, East P. C. 437, 8. In one instance, on the other hand, the prisoner was found guilty under the direction of Mr. Justice Bathurst, who did not consider this fact as necessary to the consummation of the guilt. But, in Hill's case, which was argued in 1781, a large majority of judges decided that both circumstances were necessary, though Buller, Loughborough, and Heath, maintained a contrary opinion, East P. C. 439. 2 Leach, 854. This, then, seems to be the stronger opinion, and, at the present day, if no emission took place, it would be more safe to indict for the attempt to commit, by which means a severe punishment might be inflicted. It is the essential feature of this crime, that it must be against the will of the female on whom it is committed; but its atrocity is not mitigated by shewing that she yielded, at length, to violence, if her consent was obtained by duress or threats of murder, Hawk. b. 1. c. 41. s. 6. nor will any subsequent acquiescence on her part, (k) As to this offence in general, see 3 Inst. 60. 1 Hale 626 to 636. Hawk. b. 1. c. 41. Com. Dig. Justices S. 2. 4 Bla, Com. 210 to 215. 1 East P. C. 433 to 449. Burn J. Rape. Williams J. Felony (without Clergy.) Dick J. Rape, |