delivered the opinion of the court:
Thе plaintiff in error, Hall, was convicted in the court below of the crime of robbery. Hubbell, the prosecuting witness, was the only witness to the alleged forcible taking of the pocket-book and money from his person.
The evidence tended to show that on May 4, 1897, Hubbell went to Galesburg to attend a meeting of the Grand Army, and during the day patronized a number of saloons and became intoxicatеd. Hubbell did not know where he first met Hall, but the evidence tended to prove that it was after- night-fall. Hubbell was in a saloon and inquired of onе Stewart if he knew any one there from Galva, and Stewart then called up Hall, who had just come in, because, as he said, he knew he was from Galva. Hubbell treated to beer. The parties left the saloon, and Hubbell and Hall, after walking the streets for awhile, Hubbell being in a drunken condition and holding on to Hall, met a negro woman, and the three went into the yard of a school building. Hubbell testified that thе last thing he remembered was that he was sitting on the ground against the building and that Hall tore open his vest, which was buttoned, and took out his pocket-book, which was in his inside vest pocket, and which had some money in it,—he did not know how much,—and a railroad ticket; that he, Hubbell, made no resistance; that he did not say very much about it,—did not realize what Hall was doing at the time; that he did not remember whether a woman was with him in the school yard or not; that he did not remember the places he had visited, but remembered coming to Galesburg and visiting the sаloons and being with Hall in the evening. Creen, a deputy sheriff, testified that he saw Hubbell and Hall together between 9 and 9:30 o’clock in the еvening, on the street; that he saw them stop and talk and meet a negro woman and a negro man, and heard Hall ask Hubbell how much mоney he had; that he did not hear Hubbell’s reply, but heard Hall say, “You’re all right, old man; come along;” that the negro man soon left them, and Hubbell, Hall and the woman went to the school yard; that witness went to the jail, and when he returned Hubbell was sitting down, with his back to the building, and Hall and the woman were coming away; that they passed witness at the corner of the school house, and he soon after arrestеd them. Hub-cell’s pocket-book was found on Hall, and it contained §1.57 and a railroad ticket worth twenty-nine cents. Hall did not claim that the pocket-book belonged to him, but that Hubbell had given it to him to keep: while he was with the woman|; but the jury evidently found from the evidence that he took it with the felonious intent of appropriating it to his own use, and the .only question we think it necessary to consider is, whеther, even conceding that the evidence shows that the taking was felonious, it is sufficient to sustain the conviction for robbery.
Seсtion 246 of the Criminal Code defines robbery as follows: “Robbery is the felonious and violent taking of money, goods or other valuable thing frоm the person of another by force or intimidation.” The statute also provides that “private stealing from the person of another * * * shall be deemed larceny.” (Crim. Code, sec. 167.) On a charge of robbery, if it appears that one makes an assault оn another, cind against the will of the one assaulted takes from his person his money, goods or other valuable thing by force or intimidаtion, the offense is shown. As distinguished from larceny from, the person, the gist of the offense is the force or intimidation, and the taking from the рerson, against his will, a thing of value belonging to the person assaulted. (Burke v. People,
any sеnsible or material violence to the person, as snatching a hat from the head or a cane or umbrella from the hand оf the wearer,—rather by sleight of hand and adroitness than by open violence, and without any struggle on his part,—it is merely larceny from the person. (3 Greenleaf on Evidence, sec. 229.) It may be different if the article is so attached to the person or clothing аs to create resistance, and violence is used to overcome it. (Moore on Crim. Law, p. 439, sec. 449; 1 Russell on Crimes, 874, et seq.; 21 Am. & Eng. Ency. of Law, 418; 2 Bishop on New Crim. Law, secs. 11G6, 1167.) When the force used is to prevent the resistance of or to overpower the pеrson robbed, there such force makes the offense robbery. If one should rifle the pockets of a sleeping or an unconscious person, even to the unbuttoning of clothes and turning out of pockets, such offense would not be robbery. Brennon v. State,
Klein v. People,
We are of the opinion that the evidence was not suf- " ficient to authorize a conviction for robbery. The judgment will be reversed and the cause remanded.
Reversed and remanded.