was indicted of the robbery of Halfpenny in the highway; and upon the evidence it appeared, that Harman was upon his horse, and required Halfpenny to open a gap for him to go out, Halfpenny going up the bank to open the gap, Harman came by him, and slipt

ble, that an indictment for this robbery, in which the money was laid to be the property of his master, could not be supported, as the money had never been in the possession of the master. Reg. v. Ruddick, 8 Car. & P. 237.

And when in such a case, the objection was taken during the trial, the judge directed the jury to be discharged, and a new indictment to be sent to the grand jury, containing a count, laying the property in the servant. Ib.

A. and B. were indicted for the offence of robbery. The jury found that A. took the property of the prosecutor from him by violence, and that B. was present during part of the time, and that he was a party with A. to a design to bring the prosecutor to the place where he was robbed by A. and to obtain property from him on a false charge of an unnatural crime, but that he was not aiding or assisting in, or privy to, the taking of the property from the prosecutor, by violence: Held, by all the judges, that in order to convict B. the indictment should have been framed on the statute 7 Will. IV. & 1 Vict. c. 87. 8. 4., and that he could not, since the passing of the statute, under the circumstances of this case, be convicted on an indictment charging the offence of robbery. Reg. v. Tuunton, 9 Car. & P. 309. 2 M. C. C. R. 118.

An indictment for robbery need not have the word "violently," but it must appear upon the whole statement that violence was used. Rex v. Smith, 2 East, P. C. 784.

If a prosecutor declare, on an indictment of robbery, that he parted with his property without any fear of violence to his person or injury to his character, the prisoner cannot be convicted. Rex v. Reane, 2 Leach, C. C. 616. 2 East, P. C. 734. Sed vide, Com. v. Snelling, 4 Binn. R. 379.

An indictment for a robbery, on an unmarried woman, in her maiden name, is good, although she marry before the indictment is found. Rex v. Turner, 1 Leach, C. C. 536. An indictment for a highway robbery must state, that the assault was feloniously made with an offensive weapon. Rex v. Pelseyman, 2 Leach, C. C. 563. 2 East, P. C. 783.

Evidence.-On an indictment for robbery, the declaration in articulo mortis, of the party robbed, is not admissible in evidence. Rex v. Lloyd, 4 Car. & P. 233. 1 Greenl, on Ev. § 156.

A. and B. were riding in a gig together, were robbed at the same time, A. of his money, B. of his watch, and violence used towards both. There was an indictment for the robbing of A. and another indictment for the robbing of B. Held, that on the trial of the first indictment, evidence might be given of the fact, of the loss of the watch by B., and that it was found on one of the prisoners, but that no evidence ought to be given of any violence offered to B. by the robbers. Rex v. Rooney, 7 Car. & P. 517.

MASSACHUSETTS-Robbery was always punished as a capital offence in this State, until the passing of the Statute of 1804, c. 143, by which the punishment was reduced to hard labour for life. This statute remained in force until the passing of Stat. 1818, c. 124, when robbery, if committed under certain circumstances of aggravation, was again punished with death.

The first case that occurred after the passing of the Statute of 1818, c. 124, was The Commonwealth v. Michael Martin, 17 Mass. Rep. 539, in which it was decided by the unanimous opinion of the whole court, that to make robbery a capital offence within the first section of the statute, it is sufficient if the party be armed with a dangerous weapon with intent to kill or maim the person assaulted, in case such killing or maim. ing be necessary to his purpose of robbing, and that he have the power of executing such intent. The prisoner was indicted upon the first clause of the first section of the statute for the robbery of John Bray, "being then and there at the time of committing the assault aforesaid, in manner and form aforesaid, armed with a certain dangerous weapon, called a pistol, with intent him the said John Bray then and there to kill and main." The defence set up was, that to constitute the crime of robbery a capital offence within the statute, it must be proved that there was an absolute intent to kill or maim the party robbed; at all events whether the robbery could be accomplished without killing or maiming, or not; and that in the present case the fact of the prisoner's having left the party robbed, without killing or maiming him, or making an actual

his hand into his pocket, and took out his purse; Halfpenny not suspecting the taking of his purse, until turning his eye he saw it in Harman's hand, and then he demanded it, Harman answered him, Villain if thou speakest of thy purse, I will pluck thy house over thine ears, and drive thee out of the country, as I did John Somers, and then went away with his purse; and because he took it not with such violence, as put Halfpenny in fear, it was ruled to be but stealth, and not robbery, for the words of menace were used after the taking of the purse, wherefore he was found guilty [535] only of larciny, and had his clergy.(d)

IV. As to the point of clergy in robbery.[3]

The statute of 23 H. 8. cap. 1.(e) and 5 & 6 E. 6. cap. 9. do not oust robbery of clergy in all cases, but only in two, viz. when the robbery is committed in a mansion-house, the owner, his wife, children or servants being in the house and put in fear, (f) or when committed in or near the highway.

(d) But it should seem, that this was a private stealing from the person of another, and therefore, if above the value of twelve-pence, would have been ousted of clergy by 8 Eliz. cap. 4. if the indictment had been laid pursuant to that statute.

(e) This statute, and that of 25 H. 8. cap. 3. ousts clergy only in cases of conviction, standing mute, not directly answering, or challenging peremptorily above the number of twenty, but does not extend to the case of an outlawry, but this seems to be included in the word attainted in 1 E. 6. cap. 12. however it is expressly provided for by 3 & 4 W. & M. cap. 9.

(ƒ) Being put in fear is necessary by the 23 H. cap. 1. (and also by 1 E. 6. cap. 12. which perhaps is the statute intended by our author) but by 5 & 6 E. 6. cap. 9. all that is requisite is, that the owner, &c. be in the house, tho not put in fear, for the expression of that statute is, the owner, &c. being in the house, whether sleeping or waking.

attempt to do it, proved that there was no such intent, as by the statute constituted an essential ingredient in the capital offence. This construction of the statute was not adopted by the court; but they instructed the jury, that if they were satisfied from the evidence that the prisoner armed himself with a loaded pistol with intent to kill or maim the party whom he should rob, if such killing or maiming were necessary for his purpose of robbing; and that when he assaulted and robbed Major Bray, he had the power of executing such intent, and meant to do it, if he could not otherwise rob him, the offence was capital according to the statute; and they accordingly found the prisoner guilty. See the opinion of the court at large, delivered by Parker, C. J. in which the above construction of the statute is unanswerably maintained. The Massachusetts Statutes will be found in Rev. St. ch. 125, and Supp. 127.

IN PENNSYLVANIA.—To constitute robbery there must be a felonious taking of property from the person of another by force, either actual or constructive; but if force be used, it is not essential that the prosecutor should be either aware or afraid of the taking. So decided, upon special verdict, in the case of The Commonwealth v. Snelling, before cited, in which case it was observed, among other things, by Tilghman, C. J. "If a man is knocked down and rendered senseless, and in that situation his money is taken without his knowledge, it shall not avail the thief to say that it was not taken against the consent of the man whom he had rendered incapable of exercising the faculty of volition." "Fear is not an essential ingredient of robbery; force is sufficient." See Commonwealth v. Humphries, 7 Mass. Rep. 242.

To constitute the crime of robbery, it is not necessary that the taking should be from the person of the owner, it is sufficient if it be done in the presence of the owner, as if by intimidation he is compelled to open his desk or throw down his purse, and then the money is taken in his presence. Wharton's Digest, 151; U. States v. Jones, C. C. April, 1819, cited by Wharton from MS. Report, (3 Wash. C. C. Rep. 209, S. C.) For the Penn. Stats. see Stroud's Purd. “Tit. Robbery and Larceny.”

[3] See note ante, ch. 44. p. 517.

And therefore Trin. 38 H. 8. Moore, n. 16. p. 5. A man indicted of robbery in quâdam viâ regiâ pedestri ducent' de London ad Islington, and accordingly found guilty, had his clergy, for the words of the statute are for robbery in or near the highway he shall be ousted of his clergy, and therefore the indictment and conviction must be of a robbery in vel propè altam viam regiam, and it is not sufficient to say only via regia or via regia pedestri

For where any person is to be ousted of his clergy by virtue of any act of parliament, two things are always requisite. 1. That the indictment bring the fact within the statute, but need not conclude, contra formam statuti.

2. That the evidence and finding of the jury likewise bring the case within the statute, otherwise the prisoner is to have his clergy. But an indictment of a robbery in vel propè altam viam regiam, tho in the disjunctive is usual at Newgate, for if it be either in or near it, tho an indictment ought to be certain, yet this is not the substance of the indictment, nor that which makes the crime, but only to ascertain the court as to the point of clergy to serve the statute.

A robbery is committed upon the Thames in a ship there [536] lying at anchor below the bridge, on that side of the river which is in Middlesex; for this robbery Hyde and others were indicted as of a robbery done in vel propè altam viam regiam, and were ousted of their clergy, for the Thames is in truth alta via regia the king's high stream; and if it were not, yet it is not far off from it, and the statute says near not next.

By the statute of 25 H. 8. cap. 3.(g) clergy is ousted upon examination, if the original offense were committed in another county, and excluded from clergy by 23 H. 8. cap. 1. and that statute extends to robbery in a mansion-house, or in or near the highway.

A. robs B. on the highway in the county of C. of goods to the value only of twelve-pence, and carries them into the county of D. it is certain, that this is larciny in the county of D. as well as in the county of C. but it is only robbery in the county of C. where the first taking was, and for robbery he cannot be indicted or appeald in the county of D. but only in the county of C. but he may be indicted of larciny in the county of D, and it is certain, though the robbery were but of the value of one penny, yet if A. were indicted thereof in the county of C. he should have had judgment of death, and been excluded from clergy.

Yet if A. be indicted of larciny in the county of D. and the jury find the value to be only twelve-pence, he shall only have the judg ment of petit larciny, and not suffer death, as he should have done, if he had been indicted of robbery in the county of C. altho it appear upon examination upon the trial in the county of D. that it was a robbery; the like law is, if it had been a robbery in a dwelling-house within the statute of 23 H. 8. because it can be no more than petit

(g) This statute was in effect repealed by 1 E. 6. cap. 12. but is revived by 5 & 6. E. 6. cap. 10.

larciny in the county of D. it being found but of the value of twelvepence, and accordingly resolved by the opinion of all the justices, 31 Eliz. Moore, n. 739. pag. 550. for the statute of 25 H. 8. extended to oust them of clergy, where clergy is demandable; but the jury finding the value to be but twelve-pence, or under, no [537] clergy is demandable, because petit larciny, but the party is to be whipt only.

It hath been before observed cap. 44. that upon the statute of 29. Eliz. cap. 15. tho A. and B. be both present and consenting to the breaking and entering of a house to rob, and A. only enters into the house, and B. stands by, A. shall be ousted of his clergy, but B. shall have his clergy.(h) because A. only entered the house, and the words of the statute extend only to him that actually enters the house; yet if A. and B. be present, and consenting to a robbery in or near the highway, or to a burglary, tho A. only actually commits the robbery, or actually breaks and enters the house, and B. perchance be watching at another place near, or be about a robbery hard by, which he effects not, yet they are both robbers or burglars, and both shall be ousted of their clergy, as in Pudsey's case: and the reason of the difference is, because in this case both are robbers and burglars, but in the former case both steal not in the house, but only A. and that statute binds up the exclusion of the clergy to stealing in the house.

Anno. 1672. at Newgate, Hyde and A. B. C. and D. conclude to ride out to rob, and accordingly they rode out; but at Hounslow D. parted from the company, and rode away to Colbrook; Hyde, A. B. and C. rode towards Egham, and about three miles from Hounslow, Hyde, A. and B. assulted a man; but before he was robbed C. seeing another man coming at a distance, before the assault, rode up to him about a bow-shot or more from the rest, intending either to rob him, or to prevent his coming to assist, and in his absence Hyde, A. and B. robbed the first man of divers silk stockings, and then rode back to C. and they all went to London, and there divided the spoil: it was ruled upon good advice, 1. That D. was not guilty of the robbery, tho he rode out with them upon the same design, because he left them at Hounslow, and fell not in with them, it may be he repented of the design, but at least he pursued it not. 2. That C. tho he was not actually present at the robbery, nor, as I remember, at the assault, but rode back to secure his company, was guilty as well as Hyde, A. and B. and thereupon C. as well as [538] Hyde, A. and B. had judgment of death, and was excluded

of clergy, the indictment being for robbery on the highway, according to the resolution in Pudsey's case, for they were all robbers on the highway.

(h) But now by the statute of 3 & 4 W. & M. cap. 9. he would not have his clergy, for by that statute clergy is taken away from all aiders, abetters, or assisters.

CHAPTER XLVII.

CONCERNING RESTITUTION OF GOODS STOLEN, AND THE CONFISCATION OF GOODS OMITTED IN THE INDICTMENT OR APPEAL.

ALTHO this title may seem to come more properly to be examined, when we come to consider of the proceedings and judgment in criminal causes, yet in as much as it properly relates to larciny and robbery of goods, it will not be amiss to take it up here as an appendix to the four former chapters touching larciny and robbery.

There are three means of restitution of goods for the party, from whom they were stolen, viz. 1. By appeal of robbery or larciny.[1] 2. By the statute of 21 H. 8. cap. 11.[2] And 3. By course of common law.

I. Upon an appeal of robbery or larciny, if the party were convict thereupon, restitution of the goods contained in the appeal was to be made to the appellant, for it is one of the ends of that suit.

And hence it is, that if in an appeal of felony or robbery the appellant omit any of the goods stolen from him, they are forfeit, and confiscate to the king. 45 E. 3. Coron. 100.

And so it is, if he brings an appeal of robbery or larciny, [539] and it appears upon the trial, that indeed the goods were the plaintiff's; but yet the appellee came to the goods not by felony, but by finding or bailment or the like without felony, the plaintiff forfeits these goods to the king for his false appeal. 3 E. 3. Coron. 367.

But if the defendant in the appeal be convicted, he shall not only have judgment of death, but the plaintiff shall have a restitution of his goods.

If A. steals the goods of B. C. and D. severally, and B. brings his appeal, and convicts the offender, yet before judgment C. and D. may pursue their appeals, and he shall be arraigned also upon their several appeals. 4 E. 4. 11 a.

So if judgment be given against A. upon the appeal of B. yet if the appeal of C. were begun before the attainder, A. shall be arraigned upon the appeal of C. because he is to have restitution of his goods thereby, yet by the book of 7 H. 4. 31. and 12 E. 2. Coron. 379. it seems, that the second trial at the suit of C. is but in nature of an inquest of office to entitle him to the restitution of his goods, because as to the judgment of life he is already in law a dead person, and the book of 4 E. 4. 11.(a) speaks not in case of a judgment, but only of a conviction or finding guilty; quære, vide 44

(a) That case was of a second appeal brought before the party had pleaded to the first.

[1] This no longer exists. See 59 Geo. III. c. 46.

[2] Now amended by 7 & 8 Geo. IV. c. 29. § 58.; and see 7 Car. & P. 481. 640.