McCloskey v. People

5 Park. Cr. 299 | N.Y. Sup. Ct. | 1862

By the Court, Emott, J.

The Revised Statutes define robbery in the first degree to consist in feloniously taking personal property of another from his person or in his-presence' against his will, by violence to his person, or by putting such person in fear of immediate injury to his person. (2 B.

S., 677, § 55.) The common law definition of robbery was the same. (4 Bl. Com., 243; 1 Hale Pl, vol. 1, ch. 46; 2 East Cr. Law, ch. 16, § 124, seq.) The mere snatching anything from the hand or the person of any one, without, any struggle or resistance by the owner, or any force or violence on the part of the thief, will not constitute robbery.

In Gascoigne's Case (Leach, 313; East Cr. Law, vol. 2, p. 709), the prisoner snatched some money out of the. pocket of a woman whom he was conveying to prison on a criminal charge. The prisoner was not a constable, but' attended the police office as a runner. He was convicted of robbery, and the conviction was sustained on the ground, which was. proved, that he had violently forced the woman into a coach and handcuffed her, with the felonious intent of getting her money, and the direction to the jury at the trial put the case upon this exclusively. The cases which are often cited of taking an ear ring, which was held to be a robbery when it was taken with such violence as to lacerate the ear of the wearer, or a diamond hair ornament tearing out with it a part of a lady’s hair from her head, are illustrations of the rule as to the degree of violence necessary to constitute the offense of robbery. (Leach, 238.)

The court below, in the present case, instructed the jury in effect that feloniously taking another’s property with violence sufficient to constitute an assault and battery, would make out the crime of robbery; and again, that if they believed the story of the principal witness, the offense was made out.

In these instructions the judge was in error. In the cases to which I have referred, as well as in many others to be found in the books, the snatching the property was sufficient to constitute an assault and battery, yet that alone" did not make the felonious taking more than a larceny. The property must be taken by violence to the person, which means more than a simple assault and battery. The violence must be sufficient to force the person to part with his property, not only against his will, but in spite of his resistance. The rule of law laid down by the court below went farther than the authorities justify, and the application of the rule to the facts was also incorrect. •

The proof showed that the prisoner took the money which he stole out-of the prosecutor’s pocket, while they were walking together in a friendly manner.

Ho more force was used than sufficient to pull the money out of the pocket of the witness.

Both the men had been drinking, and the prosecutor, at the time of the act, evidently considered and treated the prisoner’s conduct as a joke. He made no resistance, and yielded neither to force or fear. If he was led to entertain the idea that the prisoner intended to rob him, or to any fear or apprehension of violence or injury from him, it was not, as he himself states, until after this offense was committed.

Under these circumstances, the violence to the person in taking the property, which is the essential element of robbery, was wanting, and the prisoner’s offense was simply a larceny.

The judgment of the Court of Sessions must be reversed and a new trial ordered.