*1 STATE v. GORHAM. March State v. Gorham. Stats.,
An indictment Gen. cb. (founded upon charging 15), Lohiel, with force and arms in and respondents, Stephen Location, said Hart’s him the said assault, make an feloniously fear and and there felo- Stephen of his life then danger each, and two bank bills for the dollars niously put, of two payment each, and of the value of two dollars the national of the currency States, United and two United value States notes of the treasury each, two dollars of the of him the said moneys Lohiel, from the Stephen said the will of him the against Lohiel then and there violence and steal, take, in fear did away, form of the carry contrary statute,” is not bad for uncertainty, duplicity, repugnancy.
An which charges commission of an offence which its nature includes several inferior offences, not, reason, for such multifa- rious.
A count in an indictment all the single niay circumstances allege necessary crimes,
to constitute two different where the offence described is a com- one, circumstances, in itself plicated divers each comprehending of which anis offence. are stolen out of the goods bailee,
"Where of a possession be de- they may in the indictment bailee, scribed of the bailor or of the were never in the real although goods owner’s possession, of the bailee merely.
Bank bills are the subject no other larceny, of them is description than that
required employed portion indictment recited in the first of these notes. par-agraph
The offence of is sustained of a proof prop- of another
erty without although fear. This is true with reference to our equally statute and to the com- mon law.
An assault is unlawful motion, force physical put creating
reasonable apprehension physical ato human injury being. no fear be Although produced created, nor appai’ent apprehension the assault is consummated if an actual injury be inflicted. forcible
Any another means overcome resistance, however is a slight, taking by infliction actual injury, so is by assault. state, practice By rule court, exceptions judge waived, considered as unless taken retire. Marca, STATE v. GORHAM. John Gorham and William Mooney, charging INDICTMENT, *2 the respondents with from the of one Lohiel. Stephen
Plea, not guilty. is a of of portion the material the indictment: following copy “ The for of their grand oath, the state New jurors Hampshire, upon present, that John Gorham and of Hart’s Loca- Mooney, William both tion, in the of in Carroll on the second of county aforesaid, day June, the year of our Lord hundred at one thousand and eight seventy-four, Hart’s in Location, aforesaid, the of Carroll with force and county arms in and ously Lohiel, one of Location, said Hart’s feloni- upon Stephen make an and him in the said Lohiel Stephen fear and bank bills for the of his then and and two danger feloniously life there put, each, two dollars and the value payment two States, dollars the United each, currency of two national United each, States notes of the value two dollars treasury Lohiel, of him the said mouej’s Stephen the will of him the said Lohiel then and Stephen there violence and fear did steal, take, and carry to away, contrary the form of the statute.” The evidence on the of the state tended to that on part prove the ” morning engaged June there was strike the among laborers Railroad, the construction of the Portland & Ogdensburg in Hart’s Location, of, whom the that joined; respondents body men, some numbering forty fifty, went the line up railroad to them; induce another body of workmen to that on their join way they called at Martel, the house of one Peter whei’e procured drank intoxicated; liquor, became more or less that Martel was away from homo that his day, had left place one who Lohiel, had been him as a employed carpenter some two weeks but on that was left in previously, day charge of the bar; that body strikers, afternoon the including respond- ents, return, their at upon called Martel’s their get number, who had been left the forenoon because too intoxicated go them; with that asked Lohiel how much was to Mooney pay care of the boy, Lohiel that then said Mooney replied, nothing; Lohiel he him, wanted his left arm around whisper Lohiel’s and his neck, ear, mouth to Lohiel’s right pretending his hand whisper, in the vest put right Lohiel, on upper pocket the left side, and took therefrom a roll of of two money, consisting bills of dollars, denomination two two bills of the denomination dollar, of one and some in all some seven or scrip, eight dollar’s, hand; passed Gorham, who was near that standing Lohiel which ensued that struggle ground; threw while Mooney underneath, they were upon ground, Mooney Gorham being kicked crowd forehead, others struck him (Lohiel) with clubs his that Lohiel did succeed upon body; recovering his money; and that so was money taken had re- money ceived from day the sale of at Martel’s and while in liquor bar, ly. YOL. STATE GORI-IAM. on cross-exam- Loliiel, in tlie charge of same absence of Martel. cur- been Canada might was asked the bills not'have ination, rency, he could and he but Confederacy money, or Southern replied write, could tell tell, figures he could not read that he green- and could and that bills taken were what are called count, that there backs. There was no from source Loliiel, him in hand, his right from of Loliiel money the person Mooney it, nor up in his stated first saw then hand as when Loliiel holding own time to Gorham when passed
hand, so far warranted so finding except called of Loliiel and one witnesses testimony Briar, only Napoleon the state. that no made them each testified assault was *3 Loliiel, they in their knowledge or within their presence upon no took from his or or money custody, premises, the truth and, word, knew of in a denied they taken, none being statements the witnesses for state. After his to the jury, the solicitor had made statement opening moved state, before evidence was offered uncer- quashed, duplicity, ground re- and the tainty, motion, The court denied repugnancy.” spondents excepted. Loliiel, in chief, his examination testified as follows: “ In June, 1874,1 respond- resided Hart’s I saw Location. bigA and ten. ents June between nine forenoon, * * them again I did not them, thirty forty crowd was see into the afternoon, till four and came down and between five. They I should I wanted know how much dooryard. Mooney lived there. to he said he I not boy. said, care Then anything. ‘ to me; like said, you.’ wanted to to I should to whisper whisper He my his hand neck and hand in my He had left round put right pocket. hand ; 1ns his my right mouth to ear whisper put pretended bills, I dollar two on left side. had two two my vest upper pocket felt it— I dollar and some did not see his bills, hand, one scrip. I money, hand not see it. "Whenhe drew his saw the away could him hand Gorham. I as I heard it to Jack don’t recollect saw I it. I can’t tell what Gorham did with say anything. [Gorham] Mooney I round and hold of my money. got tried to squirmed down get forehead and I him. me on the was on Gorham struck top ; on top his boot mark to the he struck me with my with jury] [shows body' my or two struck me on twice, head once or more money.” my clubs. did not me. I not Mooney get strike “ The same cross-examination, Loliiel testified follows: Before There four and five o’clock the afternoon. came back between crowd ; I different not so can’t tell whether there were quite many was when came. I know Jack Gorham was also there, Kelley, ones. I for keep- me should ask came asked how much Mooney up, STATE v. GORHAM. ing road; was in I boy. crowd was the door. Mooney came towards me and asked much up damage how keep- ing the boy; he came feet. I some twelve or fifteen was looking the folks. The was twelve feet from the I shanty fifteen road. went out to see if was Martel crowd came coming, along. the' About half the crowd by, Mooney went when spoke stopped; Mooney was how much I should asking ways ask. Gorham was a little down the stream, thirty the crowd. The twenty feet, edge boy then door, on the went out leaning drunk, and and joined neck, crowd. his arm round put my then pretended he was going The Frenchman had taken back his revolver whisper. half an hour I had a jack- [loaned forenoon]. knife I my one blade. had drank four or pocket, five times probably that day. neck; He his hand round left put my pretended whisper; said he had me, but did I say did not something whisper. hear anything. He his hand in right vest took out put my pocket my money. I am old I forty next years weighed about one April. hundred and sixty-five My always health has I pounds. good; have worked hard. I was not afraid arm when he his round put my neck he would I was supposed the crowd. whisper. looking money showed some. It was most four I those bills. scrip, except got scrip in the house —no key Martel had the trunk. I money-drawer. felt his hand in I pocket, saw his hand. [Mooney’s] my tried to grab hand; I hollered that stealing my he was He money. it to passed Jack Gorham kicked me with his Gorham. boot. I was top Mooney. Two three others striking me with My clubs. ‘ hollered, boys you.’ Most of the Father, killing crowd was round *4 me some or had clubs their hands —four five them. Don’t know who struck me. I had Gorham or seen ten twelve times before. I saw in hand, four or five money Mooney’s right inches from my shoulder. his if say was between I can’t it was all fingers. scrip bills in his hands. I it was money. know what he [Described I asked him me I don’t recollect my money. that he give had.] said much of arm by my He took his off I anything. squirming. saw hand it. I did money Gorham, him and Gorham took not testify Pitman. was not I Esquire eye I able. could open my week, for a out bed.” nor»get The liquor evidence showed that the crowd obtained at Lohiel in two or the Martel’s three times when were forenoon of they at the day Mooney, and that Gorham and time of the (June 2), afternoon, assault and in the robbery Lohiel consider- alleged intoxicated. ably closed, When the the of the state was the testimony part respond- “ the indictment, ents moved to because indictment quash the alleges himof the said chattels, moneys
the bills to be the and goods, Stephen Lohiel; shows that were the whereas, the evidence (1) of Peter and are not nor nor Martel, moneys.” (2) The court motion, denied the and the excepted. respondents y. GOKHAM. STATE The court respondents requested the to instruct the that the- jury must not the violence and precede fear, robbery.” The court so also instructed jury, instructed if them that find they should from the evidence that respondents did rob, and from the feloniously steal, take Lohiel the notes them, or either of bills, the denomination description charged- assault or in fear, indictment; would be sufficient sustain the ruling respondents excepted. respondent’s counsel, The said lie argument the jury, “should ask the court them that, instruct the event their not finding robbery committed, offence had been crime could reduced to a petit larceny, that then true ownership of the bank bills alleged should be as averred, proved be fatal to variance would the indictment.” The being judge, occupied over his minutes of not hear looking testimony, remark, had, he would have but, refused instructions asked shape for. instructions as to The *5 of each, the two dollars of value of two payment bank the each, States, of dollars the national of United currency the two each, *6 v. GORHAM. STATE intoxi- considerably Gorham were that both Mooney robbery, voluntarily that Lohiel It also cated at the time. appears as he home, if coming Martel was out in the afternoon to see went ; the respondents in which were both crowd when the says, large passed expense about him and made inquiry came towards Mooney up his neck around his left arm then boy; Mooney put keeping time at that Lohiel I to you;” should like to said, whisper some; that showed in his which had some bills and vest pocket scrip whisper his mouth to Lohiel’s ear pretending Mooney,having put vest pocket into Lohiel’s same time his hand at the him, right put as therein, some showed which and took therefrom scrip his shoul- aforesaid; four or inches that Lohiel saw the same five Jack him hand the same and saw hand, der Mooney’s right it. It further appears did with Gorham, and could not tell what he laborer, years forty near a strong, vigorous evidence that Lohiel was pos- and sixty-five about hundred pounds, age, weighing intoxi- was much Mooney and that sessed of a one-bladed jack-knife, occurrence, that Lohiel’s the alleged cated withal the time of around his arm he put was not afraid when was, own testimony —“I crowd.” neck; looking I was my whisper. he supposed ” tried round and It also that Lohiel squirmed the case from the vest pocket, hold his it had been taken after get hand, fingers, between the in his Mooney and while it was held by right shoulder, Mooney thereupon and that from Lohiel’s four five inches aforesaid, and arm off there neck, took his from Lohiel’s placed observed, I felt it will be reads, much of The case say anything. it, calls and saw he money, hand in my pocket (Mooney’s) hand I 1ns tried to statement, grab in his hand then follows the —“ I that was stealing my money.” hollered was the case develops, In testimony view the above resist- any that Lohiel made a scintilla of evidence not then manifestly move- Mooney’s whatsoever, or said anything opposition ance in Mooney’s calls the money until he saw what he hand, ments after hand. right was no offer or attempt IY. also shows that there clearly The case hurt to do any or Gorham to on the of either part nor Lohiel, used, any putting nor that there was violence ever, if until after the statements, alleged to his own fear, according transaction if such money, so-called of facts allega- such state occur, law, under complete which it is made it ever could have been complete, tions appear law. Had the said under the can in no view be so regarded claimed of an assault taken means bills and bank been scrip fear so set forth and proved, properly the offence would have evidence, declared and established by properly held in his by Mooney was taken and the money when complete from Lohiel’s shoul- four or five inches hand the fingers, between right actually should for it is not necessary der, STATE GORHAM. *7 in tho ; if it is at time any of the from off the person even prosecutor it is of and into the respondent, taken in personal custody possession out a defendant snatched where the the case sufficient, appears ear, and it was it from the and succeeded lady’s separating ear-ring, this a hair, the court held curls of her afterwards found among Rex v. La- the indictment. asportation sufficient of proof support from the of the removing thing 1 Leach 320. The least pier, Scott, Rec. Rogers. is sufficient. Case place where it was before 169, referred to Roscoe’s Or. 569, that the words remarks, Ev. who for larceny, ordinarily than the word take take and used an indictment carry aw'ay, ” alone this con- seem to no mean more who got nection the same learned author cites case prisoner fore lay into had which wagon, and, part, taking parcel goods removed it to near the tail when was wagon, apprehended. as the The that pris- twelve were judges unanimously opinion had where it was originally oner placed, away removed from the property spot steal, carrying with an intent was a sufficient it (cid:127) Coslet, v. 236 2 East constitute the offence. Rex 1 Leach P. 556. must felony, C. For a in order to constitute carrying away, abe removal of the from the goods they originally where simply place instant, least, must for the entire were, the felon 256; absolute v. 2 East P. them. Rex 0. Leach Cherry, 536. statute, will 16, to, The it above referred language steal, rob, remembered, If shall take reads, any person another,” words carry without employing it away; sufficiently larceny may complete cases many without such of actual transfer of proof stolen from away stolen, where present premises is a with such case where such a In accordance principle applies. Carr, doctrine held in State 13 Yt. has more recently where 571, mere of another’s out of the goods place actually though the taker be detected before put, as cor- carried A similar is also away, larceny. recognized doctrine rect relation to Rex v. 1 Leach Peat, cases See robbery. East Ev. After the so- P. C. cited Roscoe on Or. aforesaid, as claimed called was taken and held Mooney stated, saw state, Mooney as has been that he by hand it to Gorham. testifies, case, This, manifestly appears, as printed shows, ensued, occurred struggle, which, before the the case in which Mooney Lohiel threw evidence further ground. neck, discloses had withdrawn his arm from Lohiel’s so Mooney aforesaid, placed in connection with the movement whisper intention him, Lohiel so that such was Mooney’s while believed desire, said in which struggle, to his before the according expressed : states which ensued struggle fell underneath. Mooney tak- The answer the evidence—the ensued what? comes under Mooney bills described in the indictment by bank ing STATE w.GORHAM. the quiet, harmless circumstances said aforementioned preceding struggle struck; in all ensued, which never course of which so to the said alleged felonious taking, complete prior there is not a struggle, that there offer testimony any was particle hurt attempt any do with an intention Lohiel, coupled at the time of actual or that was using violence against person, in fact done then, any, that there was fear even on part of Lohiel, manhood, who then in the full vigor weighing one hundred and hard sixty-five labor, health, used to pounds, perfect armed with a large knife, one-bladed approached by pocket his inferior in too drink- strength, enfeebled excessive greatly ing dealt him this same un- intoxicating liquors intemperate, *8 principled who testified could neither read nor write. ignoramus, he Y. The is that have been so taken from very property alleged Lohiel notice, itwas, worthy the fruit of his of some own criminal and conduct, that of day him so served on and basely whom he that in several jurisdictions argued courts, it has been their with great and force bills that such so obtained the un- power reasoning, lawful sale of not are and intoxicating liquors, subject larceny, although it grave held, under doubts has been othewise the question, under the state that overrules decisions of courts public sentiment through be as at rest. legislation, cannot considered InYI. this On what occurs, grounds connection was question Gorham ? The this indictment evidence does show that he aided and assisted in the of the bank alleged Lohiel, accessory it or that he was before the fact. The only his imaginable been, seems, must received ground having stolen property; convicted, and in order for to be so rightly principal must have it must convicted, have been rightly he proven received stolen, with that was with property knowledge intention to Law, shelter and the thief. Whart. Or. accommodate ed., 523,524. 7th on same The 1892, subject General Statutes tes- timony, it in the event of correct conviction of the submitted, prin- cipal evidence, would not having been had on different have warranted a conclusion it is indeed guilt against Gorham, understood that the an accessory trial him as after fact. against proceeded YII. It also be to the may here, taking, observed respect fear; it must not, as it should the violence seem, putting precede or rather that a in fear will not violence and make a subsequent or without precedent clandestinely, effected taking, put- violence in fear, amount to words of the common-law ting nition of and it robbery. The defi- violence, fear; alternative, at law that if taken either of common be these means the will of the such against taking will be sufficient party, Russ, robbery. to constitute on Crimes 71. to, 16, But the of our ch. words statute referred are vio- 264, remembered, lence and it will not in the alter- fear,” as at In native common law. view the evidence which v. GORHAM. STATE statutes, it is claimed that in discloses and the foregoing principles robbery. no view can this offence amount to alleged Mooney was seized VIII. further testimony proves him down and that he ground, holding Lohiel and thrown to the his blow gave when Gorham came up underneath himself so-called had been money and that all this after the described, happened and when there was no occa- Gorham, by Mooney passed sion, throw and so to so Lohiel, according him, hold either to himself acts threatened protect recovery property previously effect attempts injury, taken as to Gorham. "Whatever Lohiel injury aforesaid passed was, time it is further urged, received to his at that day the result and natural of his own unrestrained wrongful consequence acts, temper and violent that was consid- produced aggravated four he erably intoxicating liquor had, fired or five glasses case, and this drank to that transaction entire says, previously with all in truth said may its injurious consequences, expensive to be over said the foul which the legitimate groggery offspring June A. D. that witnessed day the drunken presided scenes that are claimed to have transpired. IX. It is an taken must be elementary principle Russ,
some value. on Or. 66. noticed, it will be does not testified scrip about, only bills, and was that could the evidence the witness neither read nor write, and that he could not tell whether the he so called *9 was Canada or Southern currency Confederate but that currency, bills were what are called The witness testified greenbacks. further on this as if it he could not was all point appears say scrip in hands, he saw but that knew it was Mooney’s money. is further therefore that under such urged testimony in were not that the finding warranted taken was property possessed value, or that it in fact of any intrinsic consisted the bank bills, in not the not included the charge. scrip X. The bank bills so taken it Lohiel had that day received Location, from the sale of at Peter Martel’s bar at liquor Hart’s in of the same in the absence of charge while Martel. The evidence therefore shows the time of the alleged property to Martel. Lohiel cannot be as other belonged Stephen regarded Martel, than a mere servant of as bar-tender acting is employment I). 2, A. but that a on June 1874. There no doubt suffi- maybe cient of the stolen in a who has a goods only ownership special them; laid as they may and that be and chattels goods property indictment. A lessee bailee, of such for a a years, carrier, in- like, a and the have sucli and the special pawnee, property; dictment of the lay goods will be either good property owners, real such having only persons special property stolen, to a at an inn are So, guest them. when goods belonging may laid to be the of the or the guest. be either property innkeeper Russ, 2 on Crimes 172. STATE v. GORHAM. The law on an indictment of a against driver on stage-coach prosecution charge considers prosecutors, the driver to have the bare the goods coach; on belonging against but a charge any other for person, them out of the tortiously feloniously driver’s he must custody, be considered as the account, on possessor, say the of the court, endless and mis- insurmountable difficulties takes which must arise in unavoidably seeking after the persons Russ, concerned as of a proprietors 175. stage-coach. Crimes But ordinarily if the person named as owner is servant to the merely owner, real the defendant 652; must be East P. for acquitted C. —2 a servant has not a special for the goods, possession
the servant is the Bex v. R. & master. Hutchinson, R. 412. 2 Whart. Or. Law, ed., 7th ascertainable, 1827. The true when in all ownership, such cases should be laid in correctly order to fully against protect prisoner subsequent proceeding the same offence. The record should show the always offence or specific which was in thing controversy, that the judgment may be a bar to a second at law. Smith’s Lead. proceeding Cases 1009. In case of indictment in time these subsequent bank stealing, taking, robbing these bills, at this same time as they are described of Peter Martel on June A. D. would the in this record case bo a suffi- cient bar? It is settled that no expressly allegation, whether be necessary or unnecessary, more less which is particular, descriptive of what is essential to the indict- identity legally charge ¡State ment, can Nolle, rejected So, Me. 476. 29, surplusage. also, P. mis-reciting statute. Com. C. and in un- public Dig., necessarily 1 Whart. Or. erroneously inserting stolen ownership goods. Law, ed., 7th It is therefore contended that words of him said moneys Lohiel” cannot be if it should be rejected deemed as surplusage, unnecessarily above is for the reason alleged, ownership assigned inserted, which in view of erroneously would, the above deci- sions, it seems, regarded as fatal. XI. It is a of law too principle quite elementary require cita- tions of that lesser authority, offences are often regarded merged the higher. XII. As a Hilliard, a motion general says for a new proposition, *10 trial’ based facts is sound upon court, addressed discretion should law, is always contrary be allowed the verdict or works manifest IT.S., Ooolcv. 1 injustice applying. Iowa party 56. When the jury have misunderstood or disregarded instructions, facts, or to consider the neglected over- properly them, looked in prominent essential and have failed to do points substantial the verdict must v. justice, Lee, be set aside. Higgins ; Ill. 495 Hilliard on New Trials 124.
XIII. It remains
to notice the
first
finally
motion to
respondents’
the indictment on
or all
in
quash
first mentioned
grounds
STATE GORHAM.
v.
with
concludes
It
indictment
drawn case.
will
observed
“
of our
words
and the
steal,
words
take,
carry away,”
The
etc.
statute,
steal, rob,
take,
in mind,
it will be borne
are
case, in
this
usual form which
been followed
have
appears
steal, rob,
etc. Where
away,”
and-
main,
take,
carry
reads
statute,
the indictment
offence,
descriptive
words of the
or their
statute
must
in the words of the
offence either
H. 439.
31 N.
Abbott,
v.
State v.
34 N. H. 510 State
Gove,
equivalent.
lan-
is
in appropriate
the offence be described
indispensable
v.
State
guage, according
ordinary
usage.
Canterbury,
correct
be so
N.
should
H.
229.
In
the offence
228,
every
really rely
described as not to leave
uncertain what the government
it
upon
trial
relied
accusation,
what
support
obtained.
after
or for what a
has
had if one be
trial,
conviction
v.
36 N. H.
N.
* J., did not sit. Smith,
164 STATE ». GORHAM.
duplicity. Nelson, State v. 163; 37; 8 N. H. N. H. State v. 11 Squires, State v. ; H. Moore,12 N. 42 301; State v. N. H. State v. Web Ayer, ster, N. H. 96. An indictment for an to set to a build fire attempt is ing not bad for though it set a en duplicity, may forth breaking tering of the as well as an building, after the building, attempt breach and entry, to set fire to it. Said is J., It true the Dewey, —“ counts set forth a in the a breaking entering, night-time, of certain described; building therein but is only introduced as allegation a part of the various acts charged have been committed defendant, all which combined authorize the charge specific offence made punishable by the statute.” It is not find, unusual to framed, a count all the essen properly tial elements of a count for a minor offence, and presenting objec tion of duplicity in an quite strongly Thus, case. present indictment for murder or is a full and technical manslaughter, of an 422, Com. battery. 10 Met. Harney, It is not, therefore, to an indictment that a objection part allegations may be off and the indictment sufficient. lopped yet remain Cr. Bishop Proc., sec. 191. In Barnes v. The State, Conn. mat- J., said, Waite, —“No ters, multifarious, however will a in- operate make declaration or formation double, all taken con- provided together constitute but one nected or v. transaction.” charge, one In State, Francisco The 4 Zab. was said (with regard indictment charging and false battery, imprisonment), —“The assault, the the false battery, themselves imprisonment, though separately considered, distinct offences, con- yet collectively they stitute but one offence.” said, And in 1 PARKE 22, 28, Dennison’s Crown Cases Baron counsel arguendo, Your would case objection every apply —“ burglary and a larceny. be, first, There burglary; secondly, the larceny: thirdly, larceny; fourthly, the compound simple in And stealing dwelling-house.” J., is added, Tindal, O. —“This facts; one set of transaction; all could not have prisoner been embarrassed.” and citations to application observations foregoing fear; bar is is, first, obvious. Here the assault assault; secondly, thirdly, the simple larceny fourthly, all larceny fifthly, larceny: they are simple described as constituting a set of facts one transaction: the prisoners could not They embarrassed. with all the charged facts which highest constitute the offence together comprehended indictment. not bad for It is not bad for un- duplicity. If certainty. or of sim- larceny lesser offence the person, ple had been could have been called larceny, charged, prisoners upon to defend of the assault or the violence proof in fear. But the facts constitute rob- being bery, graver offence, being committed without com- incapable *12 STATE v. GORHAM. 165 in tbe prehen larceny transaction the assault ding fear, or rassed violence in could not have been they embar- in a recital indictment of distinct particulars which, charges constitute the offence. Best’s- together, higher of Evid. 386. Principles 2. The second the denial of the motion founded exception quash to indictment, the bills “alleges goods, because Lohiel; chattels, and of him the said whereas moneys Stephen (1) they Martel, shows that were the of Peter property (2) bills are not nor nor goods moneys.” chattels stolen (1) described the indictment money correctly of money Lohiel. is, general rule where is a and a own general special stolen, of the er thing may lay either ownership “ or at the for other, election of the If, pleader. example, the goods are stolen from a carrier, common are allegation his, or the general owner’s, is 2 Cr. Proc., equally good.” Bishop 682. Where are stolen out of the of a goods bailee, may be described in the or indictment as the of the bailor property of the bailee — 2 Hale P. C. although goods the- never “ 181— the real owner’s of merely, but the bailee possession, as, instance, v. 2 left an inn” —Rex P. C. goods Todd, East 653 — or 356; intrusted to his v. Rex v. keeping. Leach State Som Taylor, erville, 21 Me. Ayer, Bishop Proc., 14 State v. 23 N. H. 319: 2 Cr. 53, 109. secs. It is quite (2) unnecessary trouble ourselves with the technical distinctions and refined subtleties which encumber the concerning books whether or question moneys chattels, are goods whether bank Law, are moneys; bills Grim. sec. 357-359. Bishop —see “ The indictment of charges the two bank-bills stealing pay- * * each, ment two dollars of the goods, moneys chattels, said Lohiel.” The terms included in this sentence “ “ of the chattels, and off” ex- goods, moneys,” may be or lopped They suffered remain. punged surplusage, they may be neither add nor detract from the de- meaning plain signification scription taken. “ The statute relates the robbery any money, goods, ” “ other or the which is the Bank-bills subject larceny.” are Stats., subject ch. larceny, by sec. Gen. and no other them then that description required employed present case. 377; State, Mahanna, N. 48 H. v. Hamblett 18 N. H. State 385. ” Bank-notes, within the are personal property meaning ¡Ohio statute which is all substantial against robbery, descriptive, like own. Ohio 442. State, our Turner v. The St. particulars 3. The third is to the instruction of the court to exception the jury, must effect: The violence precede for, fear, did felo- robbery; the respondents steal, and take from Lohiel the notes niously rob, STATE v. GORHAM. them, or either denomination and description indictment, by be sufficient that would sustain in- the indictment.” The substance of this is, struction that a larceny by sustains the within the comes statute. The statutes most of our states merely Bishop Statutory Crimes, reassertion 519, common law. secs. Among the common-law definitions of robbery are these: “A Bast. By taking of any value, *13 another, or in his person presence, against will, by him in 2 or fear.” East P. putting C. 707. “ Blackstone. By The felonious and forcible taking person goods money, any value, by putting of another violence or Bl. in fear.” 4 Com. 242. Lord MaNSField. “A By taking property per of another by son force.” Rex v. 2 East P. C. 725. Donolly, Russ, Russell definition Bast as adopts above —1 on given ; and Crimes *867 he says The words of definition (*875), — “ ’ in the alternative, ‘violence if fear and it be taken either of means, these the will of the such will be sufficient to party, ciple, constitute robbery. prin- indeed, of is robbery violence. “ To constitute it is Wharton. not that the robbery, necessary person robbed must have first in fear of his be taken either violence or goods fear, the owner it is sufficient render the felonious Am. robbery.” Wharton’s ed., Cr. Sd Law., 629. the definition of adopts Lord above. given Greenleaf MaNSField, 3 Gr. 223. Ev., sec. “ To constitute a there must robbery be either some act Bishop. violence, direct some demonstration from to- which injury physical robbed mav be reasonably Law, Cr. apprehended.” Bishop 1109; see, 3 Arch. Cr. Pl. also, ; U. Jones, 717-723 S. v. Wash. — 200. C. C. Uawkins It is says, of actual necessary the fact fear —“ laid in trial; should either be or be proved upon is sufficient if the offence be to be violenter et contra done ed., 235, voluntatem.” 1 Hawk. P. C., 7th sec. 9. “ Foster. I am clear very at circumstance of actual fear ** time of the needeth not be And strictly proved. a necessary law, if fear be in odium ingredient, will spoliatoris, fear where there to be so for it.” presume appearetli just ground Crown Law 128. Foster’s
In accordance with these common-law definitions is the alternative of our statute and definition own the statutes of other states.. many “ it And that an indictment is follows omits good which the words put- STATE v. GORHAM. Com. law. common fear,” good because would have been ting these might Mass. 242. And if equivalent words Humphreys, well now omitted, may rejected surplusage. have been be <s the first this, in such a case as When one draws one, or only both shall be covered is, whether alternatives question and if In this indictment law, which one. matter of latter, mentioning be without good, drawn either alternatives as laid. other; but in such a case the must sustain the proofs But it is sufficient law, when the indictment though, adequate, and both either the force violence or the prove them; therefore need between shown, not be there is no repugnance and for most count, single alternative clauses be covered may Or., sec. on Stat. Bishop cases it is best should be.” practically 521. “ be broad should best,” allegation because the practically to cover the be adduced enough support may fact comprehended charge. will, If count, they in a single alternative clauses are combined “ course, and,” with the use of the conjunctive expressed of alle- no uncertainty so that there or,” may disjunctive gation. counsel, in his finds that argument respondents’ £ that, in the should ask instruct them said he the court to jury, *14 had been com event of finding robbery their offence and that then larceny, could mitted, the crime be reduced to a petit should be as aver the true the bank-bills ownership alleged proved the indictment.’ The red, and that variance would fatal any be court, testimony, over his minutes looking being occupied if refused the instructions remark, hear would have had, of the treasury asked for. The as to ownership instructions shape from those that were notes or bank-bills would not have been different not otherwise given far as the for were So instructions asked given. refused, may be have been jury, they as to such refusal.” considered excepting already of this has been considered The subject-matter exception had to instruct requested and found to be untenable. If the court “ that of rob- the offence in the event of their not finding the jury reduced to a lar- be petit had been committed the crime could bery But under have been would, doubtless, given. instruction ceny,” court, counsel by the offence, as correctly given the definition from the folly refrained seem have naturally properly very such a of making request. absurdity “ is, is the law verdict 5. fifth exception for this excep- any grounds I am unable to discover the evidence.” it; and the evidence as I declared of the law tion, view credited, war- sufficient, abundantly as seems case, reported, both respondents, rant and demand a verdict guilty against —Gor- by Mooney, with violence taking ham being accessory 168 STATE GORHAM. properly as a the indictment. principal Or. Proc. 546. Bishop The defendants’ contend the instructions counsel were errone- ous, because no of an there was fact assault. “ force, An is unlawful physical partly fully put motion, a creating reasonable to a apprehension physical injury human need being.” There bo no actual contact of nor person, actual fear, provided actually force be motion physical put (as by loaded gun, unloaded, a for pointing whether example), motion be such as to create well founded apprehension physical- So, too, if be no
injury. mated if an fear the assault is consum- produced, is injury actually inflicted. Cr. secs. 49- Bishop Law, 54. What is Any ? injury inflicted force by physical forcible from the taking another possession means which resistance, overcome however slight, infliction of actual so is by assault. injury, “ observes, Mr. East that no sudden of a thing unawares by snatching anything the hand or person, head, is sufficient to constitute a robbery, unless some injury done or unless some person, the there be previous struggle Hawkins, But in the later editions is said to property.” snatch robbery to a basket linen suddenly from the head of an doctrine,” is, other.” “The true says such Bishop, snatching will constitute the article is so robbery, attached to the provided per son or as to clothes create however resistance, slight, not otherwise. 2 ; Cr. sec. Law, 1110 Hawk. P. Bishop C., ed., 7th Fisher’s Cr Dig. im. statute, These refer as well to our examples defined common-law offence which are cited to illustrate is, serve injury to define actual in the absence of a reasonable an essential of an ingredient assault. apprehension to me seems ridiculous contend, therefore, that here no evi- dence from which find not might merely assault, but a bat- tery also. arm around left Loheil’s neck his mouth Mooney put *15 and, ear, Loheil’s to his hand in pretending put whisper, right Loheil, of side, vest the left and took upper pocket therefrom roll “ etc. tried Loheil to money,” prevent taking money, and in the struggle prevent taking threw money] [to to the floor.” “I his hand testified, Loheil felt and saw the my pocket money “I ;” his hand saw hand, four or five money Mooney’s right inches “ shoulder;” hand; I I my from tried to his grab hollered he was ” ” “ “ I my money asked me stealing my he took give money; ” “ by my his arm off I him hand squirming money saw Gor- ham, it;” Gorham took and Gorham kicked me his boot.” if It difficult to show a clearer case not assault, would STATE v. GOBHAM. mere then certainly vest taking out pocket, Loheil’s ensued force, which continuing and violence struggle, Loheil was fully of its and control. deprived “But an the court to what would constitute instructed assault, and in fear,” what would and be a violence by putting taken the time instructions no given exceptions except such and motions.” from the requests foregoing late, It is too now, to an assault claim that there was no evidence competent be submitted to the jury. C. Stats., J. ch. By the statute of New Hampshire, —Gen. Cushing, If violence person, by by —te fear, shall feloniously steal, rob, and take from the another person money, goods, is the or other subject property
larceny, he shall years.” imprisoned thirty from seven _ The indictment felo- that the respondents case charges niously make an him, Lohiel, in bodily said Stephen fear danger of his and two feloniously put, life then there * * bank-bills, etc., him, will of the said Stephen Lohiel, by then in fear did steal, take, away, contrary carry form the statute.” The first objection was, taken to the that was bad “ repugnancy, duplicity, uncertainty.” This objection appears have been indeed, and, abandoned I at the do not see how it argument, could have been maintained. that the The statute offence contemplates may be made modes, complete by assaulting, two different —one and the other by It certainly fear. violence and putting would make it less an if the circumstances embraced offence the means described in seems as offence might the statute. It be committed either forcibly actual assault prop- erty away, means of violence so as in fear party that he would surrender without its forced being actually the property him; and in would be either of these the offence ways complete. It not be less it united all statutory offence because circumstances in con- different circumstances are so offence. The nected together by the cannot be sepa- copulative conjunction rated I do see, therefore, distributed into several offences. any ground this objection. The next objection was, taken, being taken in fact Martel’s, was is, however, laid as Lohiel. well improperly settled, Foster, as appears my brother the authorities cited the bemay Loheil described being property. It is next objected that described as of the bills were improperly chattels, and seem, There would moneys therefore, of Loheil. be no difficulty about the description.
The next objection that if jury, made is the instruction
YOL. LY. *16 STATE v. GORHAM. [Can-oil, as- rob, and take from the respondents feloniously steal, sault, the that said, offencewould be made out. And it is in argument, the indictment does not that assaulting, the act was done charge in terms. But the indictment had that the respon- suppose charged Loheil, an two bank- dents make assault the said and and for the of two dollars car- each, etc., take payment feloniously doubt that it that the ry could away: sufficiently charged was do see was ? I carrying away by assaulting the fact, the that other word why circumstances are between charged ” assault and the words alters the carry take and away,” that the sense this or how the could doubt particular, respondent was as away. means took which he and carried As request found the jury respondents guilty robbery, to immaterial. to reference offence finding the less was move The to set the aside as being contrary verdict respondents the law the evidence. I do not understand that com- we have here to deal with any definitions own definition robbery. mon-law statute makes its will whether the question be, prove evidence tended re- described statute. it to me Now, offence soon as has as counsel fallen into an error in that assuming spondents’ if nothing- have done the offence enough complete to do done, were done afterward can nothing anything more have as offence; that soon assuming, instance, making up offence, drawn Mooney had from LoliieFs money pocket, have it was could was, whatever afterwards complete, nothing it. to do with anything do it do not understand What undertook I so. these respondents to secure the of LoliieFs was, get out prize money pocket, —to Now, getting themselves. act away, away whole get get make money, getting up -went to away it, really robbery. ivas all one transaction. particular complete money it cannot be had separated. When got parts away, out of Loliiel, and LoliieFs themselves got reach, got was completed. work evidence, this particu- for the on all how say, It was then the whole effected; and if was opinion lar hold made them robbery, which and enabled transaction fear as well involved money escape, their opinion. it seems me that the justified say that J. I am of the I only same desire Ladd, opinion; our con- able to discover, the case reported I sideration, respon- not settled any legal question against elementary that are now quite the application principles dents familiar. evidence, As to the motion to aside the verdict as set Loheil shows that the *17 v. MADISON. FOWLER by guise committed under treacherous ; that stood to him in a G-orham whisper and when Loheil made by something communicating ready it; to and did effort it, receive receive away it, to Gorham their regain it, prevent getting promptly by kicking showed he was the affair Loheil the part acting forehead of his what ground the release accomplice. Upon secure it can was not evidence from which here pretended might guilty, find them both crime rob- legally principals, bery law, the common I cannot by defined statute conceive.
The there must be overruled, being exceptions Judgment on the verdict. 11, 1875. v. Madison.
Fowler March do a party Evidence that a declared that he certain act is not did not admissiblefor that he afterwards do purpose proving act. Case, to recover alleged occasioned defects in damages highway. Plea, issue. In the general fourth count declaration, the
plaintiff claimed recover for damages himself injuries horse, 1872, December road 19, being occasioned blocked with snow. The defendants tending introduced evidence show that, December Banks, of 16,1872, they employed Henry one J. Ossipee, keep the season; road 1873 and ber 19 and through winter that said Banks open died January, he, 16 and and also December between Decem- death, teams, men and broke out his by his said road, for town, executrix the sum spring paid $25. After December 16 did town appear anything about the road what it keeping said open, except through Banks of said during lifetime Banks. a witness introduced as who plaintiff Ephraim Knox, testi- fied that he over road December 16 and 20, between passed and overturned and found it full of snow, sleigh drifted that his broken. then Knox that plaintiff offered show he (Knox) had conversation with said Banks the time the subsequent town claimed to hired him that he open, road keep (Banks) evidence, said he would not do it. The court excluded plaintiff excepted. Yerdict for the defendants on all Motion the counts. plain- tiff to set the same aside and a new trial. Case transferred. Q.
F. J. S. B. Solis, Soils, Garter, plaintiff’. for the defendants. Blaisdell, Copeland notes bank ownership treasury bills would not have been different those that were So far given. as the instructions asked for were not otherwise given jury, they would refused, be considered as respondents may to such refusal. excepting The court instructed the to what constitute as- jury and what sault would constitute a violence and taking by that, between Lohiel other respondents, these wrong-doer, or mere taken from stranger the title Lohiel the bills could actual and cus- questioned, being of the same. tody To instructions no were taken given exceptions time, at the so far as except requests appears foregoing motions of respondents. returned verdict of guilty against both respondents. verdict, After moved to set the same aside as respondents being law and motion, the evidence.” The court denied was reserved. respondents excepted, J. II. Hobbs for the whom respondents. QuarlesJ, [with I. stand convicted for rec- Location, ord, upon Hart’s June charging I). 1874, A. arms Lohiel feloni- force one Stephen did make an and him the said ously danger fear his life then and there two put,
Notes
United States notes the value of two dollars of of the treasury Lohiel, from moneys of him the said the Stephen the of him then and against will the said person by feloniously steal, violence fear did putting take, away, to the form of statute. carry contrary STATE GORHAM. vio- II. An force assault is defined as an or with offer, attempt offer or lence, another; to do attempt hurt to and such corporal time must be at the with such as denote accompanied circumstances violence with actual intention, using coupled present ability, Russ, against 563, of another. 1 on Crimes person III. and forcible is at common defined law as the Robbery in his taking presence, from his another, person, property will, 2 Wharf. Or. him in fear. by by violence putting has Law, 7th ed., 1678. This the offence disjunctive way stating jn states, isit incorporated provided the statutes of several where if owner goods be taken either by violence putting in fear, it is and cases ed., 1699, sufficient. Whart. Cr. Law 7th Stats, referred to under such statutes. But Gen. ch. N. II., under which the charged the indictment highest offence this convicted, case is and of which stand created, now respondents provides that “If assault or by putting violence person, in fear, shall rob, and of another steal, feloniously take person any money, goods, chattels, or other is subject property larceny, he shall from There thirty seven to imprisoned years.” are then in offence, two state methods statutory by which whereof conviction record afore- appears against respondents mentioned, could committed, under- first assault being by —the stood and Crimes, as above defined and on applied by Russell explained and the second being by stealing, fear. The robbing, and this case com- taking alleged having been mitted means of violence method the second was, pointed out the statute referred to above. See indictment. therefore, error for they should find from the presiding to instruct judge jury evidence that the steal, and take rob, bills, Loliiel the notes Or either of them, of the denomination and description charged assault, that indict- would be sufficient to sustain the ment. Such an instruction would to find lead a that an offence had been in a way committed different than the charged, and the doctrine of variance applies. III. The in- respondents’ counsel further submits respectfully sists that the docs not show that there was any Loliiel, or violence, and him in fear, before the aforementioned his by Mooney Loliiel claimed, hand as right wherein it first after the seen Loliiel alleged felonious some four from his shoulder or five inches between the fingers, nor even to the moment when up claimed to have Gorham from his own described to passed hand. Loliiel, showed that testimony as acting employ Peter Martel had bar-tender, day sold considerable on the liquor transaction to alleged various whom were persons, among intoxi- he, Loliiel, the said had respondents; himself partaken four or cating alleged some five times liquors day