Elmstead's

case.

Money was obtained by calling a man

a sodomite and threatening him, but the money was parted with by the prosecutor, not so much from fear of

losing his character as from fear of losing

his place.

Cannon's case.

Money held

to have been

obtained by

having been

some con

straint upon

being made, and that there was no previous application to any friend or other person, from whom advice or assistance might have been procured.

Hickman's 's case was again observed upon in a case which occurred shortly afterwards. The prisoner went twice to the house where the prosecutor lived in service, and called him a sodomite and br. The prosecutor took him each time before a magistrate, who discharged the prisoner. On leaving the magistrate the prisoner followed the prosecutor, again called him a sodomite and br, and asked him to make him a present, said he would never leave him till he had pulled the house down, but if he did make him a handsome present, he would trouble him no more. He asked four guineas, and the prosecutor being frightened for his reputation, and for fear of losing his situation, gave him the moHe ney. the gave money from the great apprehension and fear he had of losing his situation. The prisoner was convicted before Hotham, B., (Le Blanc, J., and Chambre, J., being present,) but upon a doubt in the privy council, the opinion of the Judges was taken. Most of the Judges thought that this was within Hickman's case, and nine of them (v) seemed to think Hickman's case binding, but the three others (a) thought it not law. (y) It seems that the prisoner was pardoned. (z)

But in a case where that which took place was considered as amounting to a constraint upon the person of the prosecutor, it was held that the money was obtained by robbery, though the robbery, there prosecutor not having the money about him went to a friend to procure it, and though the prisoners had seen the prosecutor several hours before, had then made the charge, and had fixed a future the person of time for receiving the money. And it was held that calling a the prosecutor. coach for the purpose of carrying the prosecutor before a magis'trate, and the prosecutor being induced to get into it amounted to a constraint upon his person, though he had no apprehension of further violence to his person than that of being carried before a magistrate. The prisoners had been with the prosecutor at ten o'clock in the morning, and had threatened to prefer the charge of an attempt to commit an unnatural crime, if he did not give them 107.: one of them pretended to be an assistant police officer, and to him the prosecutor had given 107. the night before. The prosecutor fixed to meet them the next morning at nine o'clock, but they came again that night at mine, and said they could not wait, and that, as the prosecutor had not 107. about him, they must take him to Bow-street. He then agreed to go, and they called a coach and he got in. They then said if he would procure the money they would not prefer the charge. He went to a friend's and got 107., and gave it to them. He was there about five minutes. The prisoners went to the house with him, and waited for him in

(v) Chambre, Le Blanc, Rooke, Thomson, Grose, Heath, Hotham, M'Donald, and Lord Alvanley.

(x) Graham, Lawrence, and Lord Ellenborough.

(y) Lord Ellenborough thought that the prosecutor's principal in

ducement in the present case to part with his money was the fear of a loss of his place, and his Lordship said that he should feel no difficulty in recommending a pardon.

(2) Rex v. Elmstead, Mich. T. 1802, MS. Bayley, J.

the street. Upon the trial, the prosecutor said he was under the apprehension of being carried by force into custody, but that he did not give the money under the impression of danger to his perThe prisoners were convicted, and upon a case reserved, ten of the Judges held that the calling the coach, and getting in with the prosecutor was a forcible constraint upon him, and sufficient to constitute robbery, though he had no apprehension of further injury to his person: but five (a) of the Judges thought that some degree of force or violence was essential, and that the mere apprehension of danger to the character would not be sufficient to constitute the offence. Five (b) others of the Judges seemed to think it would. (c)

Egerton's case proceeds upon the principle of Hickman's case, and deof loss of character and service upon a charge

cides that fear

domitical

practices, is sufficient to constitute robthe party has

being taken

into custody,

In a later case the point came again under the consideration of the Judges, and it appears now to be settled that fear of loss of character and service, upon a charge of sodomitical practices, is sufficient to constitute robbery, though the party has no fear of being taken into custody, or of punishment. The prisoner saw the prosecutor, a servant whom he knew, at his master's door, and applied to him for 57. saying money he would have, and that of the prosecutor. He then demanded 17. and said that if he did not instantly get it he would go in to the prosecutor's master and swear that the prosecutor wanted to take diabolical liberties with him. Then hearing some money jingle in the prosecutor's pocket -he demanded it, and the prosecutor gave it him, being one shilling and some halfpence. He then inquired about the prosecutor's no fear of clothes, and swore that money he would have, or the value, before he left the house, upon which prosecutor fetched him up a coat, and he then went away. The prosecutor stated in his evidence, ment. that he gave the property for fear of his character and place, that his fear was, that the prisoner would go in to his master, but that he had no fear of being taken into custody, or of punishment. The prisoner was convicted, and upon a case reserved, all the Judges, except Graham, B., thought that this was within Hickman's case, and that they were bound by that case, and could not properly depart from it. And Richards, C. B., Bayley, J., and Holroyd, J., expressed their opinions that Hickman's case was right, because the charge conveyed such a degree of terror as might be expected to over-power a firm and constant mind. None of the other Judges, except Graham, B., intimated a contrary opinion. And the conviction was affirmed. (d)

or of punish

But parting with property upon the charge of an unnatural Fuller's case. crime, will not make the taking a robbery, if it is parted with, not Parting with from fear of loss of character, but for the purpose of prosecuting the purpose of the money for the offender. The prisoner applied to Fry to lend him 10s., and afterwards upon his refusal threatened to charge him with an unnatural crime, prosecuting and got from him 17. 10s. Fry parted with it from an anxiety that the offender, his master's family might not be disturbed, and in expectation amount to that he might secure the prisoner: and he immediately stated the robbery.

(a) Lord Ellenborough, the Chief Baron, Lawrence, Chambre, and Graham.

(b) Heath, Grose, Thomson, Le Blanc, and Wood.

(c) Rex v. Can non, Hil. T. 1809, MS. Bayley, J., and Russ. & Ry. 146. (d) Rex v. Eg crton, Hil. T. 1819, MS. Bayley, J., and Russ, & Ry. 375.

does not

Of principals

and accessories.

circumstances to his master, and to a friend, and planned with them what he should do in case of the prisoner applying again. The prisoner did apply again; and Fry fixed to meet him, marked some money, engaged a constable, and having met the prisoner, gave him the money, and had him apprehended: he parted with this money in order that he might prosecute, because he knew himself innocent, and not from the threats. Upon a case reserved, the Judges held that this taking did not constitute a robbery, and the prisoner was recommended for a limited pardon. (e)

Having thus treated of the facts and circumstances necessary to constitute the crime of robbery, this chapter may be concluded by shortly adverting to some points which have been decided respecting persons aiding and abetting in this offence, and also respecting the indictment.

The same general rules which prevail in other cases of principals and accessories, apply also in the case of robbery. (ƒ) Thus if several persons come to rob a man, and they are all present, and one only actually takes the money, it is robbery in all. (g) So if A., B., and C., come to commit a robbery, and A. stand sentinel at a hedge-corner to watch if any person should come, and B. and C. commit the robbery, it will be robbery in A. also, though he was at a distance from them, and not within view. (h) And the principle of several persons engaged in one common design being in the eye of the law present when the fact is committed has been carried to a considerable extent in the case of robbery. For where three men went out to rob, and attacked a man who made his escape, and while two of them were engaged with that man, the third robber rode off and robbed another person in the same highway, without the knowledge of the two other robbers, and out of their view, and then returned to them; it appears to have been holden that all of them were guilty of this robbery, as they came together with an intent to rob, and to assist one another in so doing. (i) But where several men by agreement rode out to commit robbery, and at Hounslow one of them parted from the company, and rode away towards Colnbrook, and the others rode towards Egham, and at the distance of about three miles from Hounslow, committed a robbery; it was holden that the man who parted from the company was not guilty of this robbery, though he rode out with the others upon the same design : for he left them at Hounslow, and, as he did not fall in with them afterwards, possibly he repented of the design, but at least he did not pursue it. (k)

The presumption of a party repenting of his evil design appears to have been admitted to a greater extent in a more modern case. It appeared in evidence that the two prisoners accosted the prosecutor as he was walking along the street, by asking him, in a peremptory manner, what money he had in his pocket. Upon (e) Rex v Fuller, Hil. T. 1820, MS. (g) 1 Hale 534. 1 Hawk. P. C. c. Bayley, J., and Russ. & Ry. 408. 34, s. 5.

(ƒ) Ante, Vol. 1. Book I. Chap. 2. The punishment of principals in the second degree and accessories has been mentioned, ante, 61.

(h) 1 Hale 534, 537.

(i) Hawk. P. C. c. 34. s. 5. Pudsey's case, 1 Hale 533, 534.

(k) Rex v. Hyde and others, 1 Hale 537, 538.

his replying that he had only twopence halfpenny, one of the prisoners immediately said to the other, "If he really has no more, "do not take that," and turned, as if with an intention to go away: but the other prisoner stopped the prosecutor, and robbed him of the twopence halfpenny, which was all the money he had about him. But the prosecutor could not ascertain which of them it was that had used this expression, nor which of them had taken the halfpence from his pocket. The court said that this evidence went to the acquittal of both the prisoners; for if two men assault another, with intent to rob him, and one of them, before any demand of money, or offer to take it be made, repent of what he is doing, and desist from the prosecution of such intent, he cannot be involved in the guilt of his companion, who afterwards takes the money; for he changed his evil intention before the act which completes the offence was committed. That the prisoner, therefore, whichever of the two it was who thus desisted, could not be guilty of the offence charged: that one of them was guilty, but which of them personally did not appear. And, as the prosecutor could not ascertain who it was that took the property, both the prisoners must be acquitted. (1)

The indictment for robbery must state an assault upon the per- of the indictson; and that such assault was made feloniously. And where the ment. indictment charged that the prisoner, "in and upon I. M., &c. "did make an assault, and him the said I. M. in corporal fear and "danger of his life then and there feloniously did put," it was holden to be defective; and that the omission of the statement of the assault having been feloniously made was not aided by the statement of the prosecutor having been feloniously put in fear and danger of his life. (m) The taking must be charged to be with violence, and against the will of the party: and the statement, in the usual form of an indictment for this offence, is, "certain "goods, &c. of the said A. B., from his person and against his "will, then and there feloniously and violently did steal, take, " &c." But the word violently is not essentially necessary: as in a case where it was objected that the indictment did not shew that the taking was done violenter, and that the prisoner was, therefore, entitled to his clergy, and the authority of Lord Hale was cited, (n) all the Judges, upon the point being reserved, agreed that the word violenter was no technical term essentially

(1) Rex v. Richardson and Greenow, O. B. 1785, cor. Buller, J., 1 Leach 387. The court also said that it was like the Ipswich case, where five men were indicted for murder, and it appeared, on a special verdict, that it was murder in one, but not in the other four, but it did not appear which of the five had given the blow which caused the death; and it was ruled that as the man could not be clearly and positively ascertained, all of them must be discharged.

(m) Rex v. Pelfryman and Randal,

2 Leach 563.

(n) 1 Hale 534: where it is said that the indictment must run, quod vi et armis apud B. in regiâ viâ ibidem, &c. 40s. in pecuniis numeratis felonicè et violenter cepit à persona; and, therefore, if the word violenter be omitted in the indictment, or not proved upon the evidence, though it be in alta via regia et felonicè cepit à persona, it is but larceny, and the offender shall have his clergy and Dy. 224. b. H. 17 Jac. in B. R. 2 Rol. Rep. 154. are cited.

:

necessary in the indictment: and that if it appeared, upon the whole, that the fact was committed with violence, it was sufficient to constitute a robbery. (0) And with respect to the authority cited, they said that Lord Hale, in the passage referred to, was inaccurate in his expression; that the definition which he gave of robbery was a felonious taking from the person with violence; and that if the fact were so described in the indictment, as to answer the definition, it came up to Lord Hale's own doctrine. (p) It is considered as uncertain whether the indictment should charge that the party was put in fear; though, as such statement is usual, it will be more safe to insert it. (q) But, in general, no technical description of the fact is necessary, if upon the whole it plainly appear to have been committed with violence against the will of the party. (r) And where the taking has been by a putting in fear by means of threats to charge the party with sodomitical practices, the indictments appear to have been for robberies in the usual form. (s)

It was formerly material to state correctly, in the indictment, whether the robbery was committed in or near the king's highway; and many points of much nicety arose as to the manner of such statement, and also as to what should be considered as a highway robbery. (1) But the statute 3 W. & M. c. 9. s. 1., (now repealed) relating generally to all robberies, whether in a highway, house, or elsewhere, made these points no longer necessary to be considered and we have seen that the provision of the 7 & 8 Geo. 4. c. 29. s. 6. is quite general. (u) In a case which occurred soon after the statute of 3 W. & M. was passed, where the indictment was for a robbery near the highway, and a robbery in a house was the offence proved, it was holden by all the Judges, that as that statute took away clergy in all robberies, the prisoners should not have their clergy. (x) And so upon an indictment which charged the prisoner with robbing a person in a field, near the highway, where the jury found a verdict guilty of the robbery, but not near the highway," it was holden, by all the Judges, that the prisoner was ousted of clergy. (y) And a case is mentioned, as having been determined upon similar principles, where the robbery was in a house in a street, hired by one of the prisoners for the purpose, but not inhabited by any one; and the indictment charged the robbery to have been committed in the dwelling-house of that prisoner. (s) It followed, therefore,

(q) 2 East. P. C. c. 16. s. 166. p. 783. It is not necessary that the indictment should charge that the party robbed was put in fear if it is stated that the prisoner acted violenter, and that the party was robbed contra voluntatem. Per Foster, J., 19 St. Tr. 806.

(r) 2 East. P. C. c. 16. s. 166. p. 783. s. 127. p. 708.

(s) Jones's, alias Evans's case, 2

East. P. C. c. 16. s. 130. p. 714. Leach 139, ante, 76. and the other cases of a similar nature, cited ante, 80, et sequ.

(t) Hale 535, 536. 2 East. P. C. c. 16. s. 168. p. 784, 785. (u) Ante, 61.

(a) Summers's case, 1705. 2 East. P. C. c. 16. s. 68. p. 785. (y) Wardle's case, 1800. P. C. c. 16. s. 168. p. 785. Ry. 9.

2 East. Russ. &

(z) Rex v. Darnford and Newton, O. B. 1780. 2 East. Ibid.