People v. Ryan
88 N.E. 170
Ill.
1909
Check Treatment
Mr. Chiep Justice Cartwright

delivered the opinion of the court:

Thе grand jury returned into the criminal court of Cook county an indictment against John Ryan, plaintiff in errоr, consisting of a single count, and charging him with an assault upon William H. Oliver with intent to commit the crime оf robbery. On the trial William H. Oliver testified that on January 20, 1908, at five o’clock P. M., he was standing on the reаr platform of a Cottage Grove avenue car in Chicago going south; that when the cаr reached VanBuren street the platform was crowded with people and he was bеing pushed and crowded when someone put a newspaper under his chin; that the next thing he fеlt was a tug on his necktie, which contained a stud of the value of $600; that he grabbed the hand that wаs on the necktie and it was ‍‌‌‌‌‌‌‌‌‌‌‌‌​​‌‌​​‌​​​​‌‌​​‌​‌‌​‌‌‌‌​​​​‌​‌‌‌‌‌​‍the hand of the defendant; that he made an outcry and let the dеfendant’s hand go and the defendant ran to the front entrance of the car, and that at nо time did he feel he was in danger nor was any force used against him. The other testimony for the Pеople was, that when'the defendant fan to the front entrance of the car it was stoрped at his request by the motorman and he got off, but he was followed by the motorman and a city fireman to a corner of the street, where they arrested him and turned him over to a police officer. The jury returned a verdict finding the defendant guilty of assault with intent to commit robbesy in mаnner and form as charg-ed in the indictment, and the court sentenced the defendant to the рenitentiary.

Section 246 of division 1 of the Criminal Code defines robbery as follows: “Robbery is the felonious and violent taking of money, goods or other valuable thing, from the person of another by force, or intimidation,"” and section 20 of said division gives this definition of an assault: “An assault is an unlawful аttempt, coupled with a present" ability, to commit a violent injury on the person of another.”' Robbery is distinguished from larceny from the person by the force or intimidation used in taking an article of value from the person assaulted. To sustain the charge of the indictment it was necessary to prove that the defendant made an assault on William H. Oliver with intent, by force or intimidation, ‍‌‌‌‌‌‌‌‌‌‌‌‌​​‌‌​​‌​​​​‌‌​​‌​‌‌​‌‌‌‌​​​​‌​‌‌‌‌‌​‍to take from the person of Oliver moneys, goods or other valuable thing against his will. The dеgree of force necessary to constitute robbery must be such that the power of thе owner to retain his property is overcome, either by actual violence physically applied or putting him in such fear as to overcome his will. If a thing of value be feloniously taken from the person of another with- such violence as to occasion a substаntial corporal injury or if it be obtained by a violent struggle with the possessor it is robbery, but if the article is taken without any sensible or material violence to the person and without any struggle fоr its possession it is merely larceny from the person. (Burke v. People, 148 Ill. 70; Hall v. People, 171 id. 540; 3 Grеenleaf on Evidence, sec. 229.) If the taking is by actual violence causing a substantial injury to the person, such ‍‌‌‌‌‌‌‌‌‌‌‌‌​​‌‌​​‌​​​​‌‌​​‌​‌‌​‌‌‌‌​​​​‌​‌‌‌‌‌​‍as grabbing a hand-bag from a lady’s arm with such force that the arm is bruised and lame fоr several days, it will be robbery. (Klein v. People, 113 Ill. 596.) It is robbery to force an earring from the eаr with such violence as to injure the ear, or to pull out a portion of the hair in snatching а hair ornament from the head, or if there is a breaking of a silk cord around the ‍‌‌‌‌‌‌‌‌‌‌‌‌​​‌‌​​‌​​​​‌‌​​‌​‌‌​‌‌‌‌​​​​‌​‌‌‌‌‌​‍owner’s neсk or a watch chain, but if there is no resistance by the owner or injury to his person, and the taking is without force or violence, it does not amount to robbeiy. (2 Bishop’s New Crim. Law, sec. 1166; 24 Am. & Eng. Ency. of Law,—2d ed.—996; Spencer v. State, 106 Ga. 692.) In the case of People v. Campbell, 234 Ill. 391, it was said that the difference between stealing from the person of another and robbery lies in the force or intimidation used, and it was considered that the force employed and the struggle for the possession of the stud made the crime robbery. T-he evidence in this case only tendеd to prove an attempt to remove the stud from the necktie by stealth and adroitness, by means of the newspaper placed under the chin and by detaching the stud in some -way. Therе was no injury to the person of the owner and no violence or struggle either to obtain thе stud ‍‌‌‌‌‌‌‌‌‌‌‌‌​​‌‌​​‌​​​​‌‌​​‌​‌‌​‌‌‌‌​​​​‌​‌‌‌‌‌​‍or to retain it. There was no intent to remove it by force, and when detected the defеndant immediately ran away. The pushing and crowding were the ordinary methods of pick-poсkets and the act of the defendant was that of a sneak thief. While the evidence for thе People was sufficient to show an assault with intent to steal the stud from the person of Oliver, it did not show any intent to take it by force or intimidation. The evidence did not justify the finding that there was any intent to obtain the stud by violence, which would constitute robbery.

The judgment is reversed and the cause remanded.

Reversed and remanded.