SUPREME COURT.

#### Michael Mahoney, plaintiff in error, agt. The People, &c., defendants in error.

*General*Term, *First*Department,

December, 1874.

*Force necessary to constitute robbery in Che first degree—sufficiency of bill of exceptions.*

The amount and degree of violence which must be exerted by a prisoner, to bring him within the statute defining robbery in the first degree is not declared, and manifestly could not be. The gravamen of the crime, as declared by the statute, consists in taking “ the personal property of another from his person, or in his presence, and against his will, by violence to his person, or by putting such person in fear of some immediate injury to his person.”

It is not the extent and degree of force which makes the crime, but the success thereof. In short, the force which is sufficient to take the property against the owner’s will is all that the statute contemplates.

The distinction between robbery and larceny consists in this: In the latter, the act “is accomplished secretly, or by surprise or fraud; ” while in the former, the felonious taking must be “ accompanied by circumstances of violence, threats or terror to the person despoiled.”

Where the prisoner, on exceptions, objects to the charge of the court to the jury on the trial, that if- they believed the truth of the evidence of the complainant hereinbefore detailed, then the prisoner was guilty of robbery in the first degree as charged (and not merely guilty of larceny from the person); and if the bill of exceptions is so drawn as not to show to this court all the evidence of violence upon which the court and jury acted, it cannot prevail. The error does not affirmatively appear.

It is an elementary principle that in the absence of all the evidence given upon the trial, the appellate court will assume, when the question is upon the sufficiency of the evidence, that that which is not returned to it, warranted the ruling, and justified the verdict.

On the 14th day of April, 1873, the plaintiff in error, at a court of general sessions of the peace of the city and county ' *186of New York, held in the city of New York, before Hon. John K. Hackett, recorder of the said city, was convicted of the crime of robbery in the first degree, and sentenced to the state prison for twenty years. The case was removed to this court by writ of error.

*John O.*Mott, for plaintiff in error.

*Benjamin K.*Phelps, for defendant in error.

Westbrook, J.—

On the 5th day of April, 1873, upon “a somewhat rainy night,” about the hour of ten and a half o’clock, one Peter H. Corson, who was on his way to his residence, at No. 319 East Twentieth street, in the city of New Yoi’k, from Barnum’s museum, having hold of his boy with one hand and an umbrella in the other, was, immediately on stepping upon the platform of a Third avenue car, robbed of his pocket-book and contents by the prisoner.

The questions, which the counsel for the plaintiff in error presents, are, was the crime committed, that of which he was found guilty, to wit:—robbery in the first degree — or was it simply larceny from the person ?

The prisoner’s counsel upon the trial conceded “that his client was guilty of the grand larceny in having feloniously taken the complainant’s property from his possession,” but insisted “ that it was unaccompanied by violence within the meaning and comprehension of the statute.” The recorder, after reading to the jury our statute, which defines the crime of robbery in the first degree, left to them the question of the truth of the story of the complainant, and added: “ If you believe his statement, with reference to the occurrence, to be true, I charge you, that the force used by the prisoner, is that character of violence comprehended by the statute. The statute does not define the character or characters of the force or injury that must be used to constitute one of the elements of robbery in the first degree. It nowhere says, that a person *187shall be knocked down and beaten senseless, before the assailant can come within its comprehension ; but I charge you, if you believe Mr. Corson’s statement to be true, that the prisoner put his arm around his neck, and violently and forcibly, then and there, jerked his head back in the manner that he described that he did, and forcibly and feloniously took from his person his pocket-book and money, that it was a robbery with felonious intent, and accompanied by violence.”

Various exceptions taken by the prisoner’s counsel to this charge present this question: Considering the truth of Mr. Corson’s evidence, is the prisoner guilty of the crime whereof he stands convicted 2

The narration of the occurrence by the complainant is as follows: “ I stepped on and made an effort to get into the car; there was a very large man stood right in the front door of the car, holding me back; that man (the prisoner) came and put his arm around my neck, pulled upon me, pulled up my head so (showing), and I had this arm — my left arm — kind of up, and then he pulled me two or three times; said I, ‘ What are you doing 2 ’ Said he, ‘ I want to get that lady in.’ I saw no lady. * "" * Well, perhaps, in less than one-tenth part of the time I have been stating it, he stepped off; I felt his hand come out of my pocket. Q. (By the court.) What did he do to your neck; put your head up 2 A. Yes, sir; and pulled back with his left arm. Q. (By the assistant district attorney.) Where did he stand .then; behind yon 2 A. He stood rather in front of' me; that way (showing); I stood this way; he stood in front of me, reaching around; the other man stood here, ci’owding me against the door.” The witness then described the contents of his pocket-book, and said that he felt for and missed it as soon as the prisoner withdrew his hand. On his cross-examination the witness further testified: *“*Q. How did he put his arm around your neck; was he pushing you one side 2 A. Ho; he was pulling me to him. Q. Where was he; in what position of the car; was lie next to the driver, or where 2 A. He was just inside, on *188the edge like that, you know; I stood right here; he reached in and got his hand around my neck, and pulled me to him, pulling me out, pulling me up in front, up so, you know; I stood here. Q. You asked him what he was doing? A. Yes, sir. Q. Did he hurt you ? A. He did not hurt me particularly ; he gave me a pretty good jerk.”

The foregoing is all the evidence given upon the trial showing the violence used, and our statute governing the case is as follows: “Every person who shall be.convicted of feloniously taking the personal property of another from his person, or in his presence and against his will, by violence to his person, or by putting such person in fear of some immediate injury to his person, shall be adjudged guilty of robbery in the first degree” (2 *R. S., p.*697, § 55, *Edm. edition).*

In discussing the point made by the prisoner’s counsel, that the recorder erred in instructing the jury that, if they believed the truth of the evidence of the complainant herein-before detailed, then the prisoner was guilty of the offense defined in the statute just quoted, it is apparent that it is liable to the fatal objection that the error does not affirmatively appear; because the bill of exceptions is so drawn as not to show to this court all the evidence of violence upon which the court and jury acted. It is an elementary principle that in the absence of all the evidence given upon the trial the appellate court will assume, when the question is upon the sufficiency of the evidence, that that which is not returned to it warranted the ruling and justified the verdict. Upon the trial of this indictment not only did the complainant undertake to describe the illegal robbery by words but by acts, he exhibiting to the jury by physical action the mode and manner thereof. That description which the court and jury, by and before which the prisoner was tried, saw, and from seeing which, a correct idea of the force and violence used in perpetrating the theft can alone be formed, this court cannot see, and because it cannot^ it is unable to say, and cannot say that the recorder erred in his charge. On the con*189trary, upon the well known rule to which we have alluded, that the tribunal whose proceeding is reviewed is presumed to have decided rightly, unless the error affirmatively appears, this court must assume that the representation, by action, of the force used in the perpetration of the crime, and which it is impossible for us to learn from the bill of exceptions, sufficiently proved to it, that the prisoner used violence enough, to bring him within the statute. For this reason, alone, the conviction should be affirmed.

But it also seems to us that the violence which the words proved was sufficient to justify the charge. The amount and degree of violence which the accused must exert to bring him within the statute defining robbery is not declared, and it manifestly could not be. The gravamen of the crime consists in taking *“*the personal property of another from his person, or in his presence, and against his will, by violence to his person, or by putting such person in fear of some immediate injury to his person.” In other words, the violence to the person, or the fear of immediate injury to the person, which, against the owner’s will, is sufficient to take his property, will, if the taking be felonious, render the taker amenable to the statute. It is not the extent and degree of force which make the crime, but the success thereof. In short the force which is sufficient to take the property against the owner’s will, is all that the statute contemplates — the distinction between robbery and larceny consisting in this : in the latter the act “ is accomplished secretly, or by surprise or fraud,” while, in the former the felonious taking must “ be accompanied by circumstances of violence, threats, or terror, to the person despoiled” (2 *East's Pleas of the*Crown, 552).

In the case before us the accomplice of the prisoner crowds the complainant against the door of the car, whilst the accused throws his arm around the prosecutor’s neck, pulls him toward him, and then rifles his pocket. If this statement be true it amply justified the charge, for, whether the force gave pain or not, it accomplished the theft;' and by *190it, and it alone, Mr. Corson was feloniously deprived of his property against his will, though conscious of the act and trying to prevent it.

The books contain many cases of convictions of the crime of robbery, where the force employed was evidently no greater than in this. With the citation of one very similar we end the discussion. In *Commonwealth*agt. *Snelling*(4 Binney, 379) *“*a special verdict found that the prisoner took the prosecutor by the cravat, with an intention to steal his watch, and also pressed his breast against the prosecutor’s and held him against the wall, during which he took the prosecutor’s watch from his fob without his knowing it; and the prosecutor had no idea that he meant to rob him, but was afraid he meant to whip him. This was held to be robbery” *(Cited from 2 Wharton's Criminal Law [7th*edition], *section*1701).

The principle which the case just cited determines is this: That when force is employed to divert the owner’s attention, whilst he is unconsciously deprived of his property, the taker is guilty of robbery, though by means of the force which distracts the attention, the larceny is artfully and unknown to the owner completed. This is sound sense and good law. The force strategically employed so as to deceive an opposing commander as to the real object, whilst the latter is stealthily but successfully pursued, is that which wins the battle, though employed by indirection to accomplish the result. And the force which a thief uses to and upon the person of his victim to consummate a robbery, if successful, is as much the successful force which robs, when exerted to bewilder and confuse, as when used and exerted directly upon the main object. In either the taking would be the result of force, though in the one case indirectly applied, and in the other directly.

In the case before us the most that could be said in favor of the prisoner is, that his confederate- and he used force to distract. Mr. Corson’s attention whilst his pocket was picked. *191Unlike the Pennsylvania case, however, the hand which grasped the pocket-book was felt, and the theft discovered. The force, however, was, in both cases — to give the most favorable construction to the prisoner of the evidence — used for the same purpose; and if thus employed in the one case it was robbery, it was equally so in the other.

The result of our examination is, that the conviction and judgment in this case must be affirmed.

Davis, P. J., concurred.