Supreme Court. Monroe General Term.

December, 1865.

*Johnson, J. C. Smith*and *E. D. Smith,*Justices.

#### The People *v.*Eli H. Hall.

On the trial of an indictment for rohhery, the question whether the act was done with a felonious intent is exclusively one of fact, to be decided by the jury.

The mere snatching of an article of property from the person of another is not robbery.

Form of an indictment for robbery.

An indictment for robbery was found against the prisoner in the following words:

*State of New York, Livingston County, ss:*

The jurors of the people of the State of Hew York, in and for the body of the county of Livingston, upon their oath present:

That Eli H. Hall, late of the town of Geneseo, in the county of Livingston aforesaid, on the nineteenth day of *635March, in the year of our Lord one thousand eight hundred and sixty-three, at the town and county aforesaid, with force and arms, in and upon one George F. Johnson, in the peace of the said people then and there being, feloniously did make an assault, and one cylinder escapement watch with composition cases, of the value of twenty-five dollars, of the goods, chattels and personal property of the said George F. J ohnson, from the person of the'Said George F. Johnson, and against the will, and by violence to the person of the said George F. Johnson, then and there violently and feloniously did rob, steal, take and carry away to the great damage of the said George F. Johnson, against the form of the statute in such case made and provided, and against the peace of the people of the State of Hew York and their dignity.

And the jurors aforesaid, upon their oath aforesaid, do further present, that Eli H. Hall, late of the town of Geneseo, in the county of Livingston aforesaid, on the nineteenth day of March, in the year one thousand eight hundred and7sixty-three, at the town and county aforesaid, in the highway there, with force and arms, in and upon one George F. Johnson, in the peace of the said people then and there being, feloniously did make an assault, and him, the said George F. Johnson, in bodily fear and danger of his life in the highway aforesaid, then and there feloniously did put, and one composition cased watch, of the value of twenty-five dollars, of the goods and chattels of the said George F. J ohnson, from the person, and against the will of the said George F. Johnson, in the highway aforesaid, then, and there violently and feloniously did seize, take and carry away, to the great damage of the said George F. Johnson, against the form of the statute in such case made and provided, and against the peace of the people of the State of Hew York and their dignity.

' G-. J. DAYIS, *District Attorney.*

The defendant pleaded not guilty.

*636The cause came on to be tried in the Livingston Oyer and Terminer, in May, 1865.

*George F.*Johnson, testified as follows: On the 19th of March, 1863’ I was going up the street and Ranger called me to stop: I did so and they came up; he said: “Johnson, if you have got Eli’s watch you had better give it up.” I said I hadn’t, and told him to search me; he found a watch in my pocket and asked Eli if this was his; he said “no, let me take it.” He then asked if I had another, I said yes. I took it out of my pocket and Eli took hold of it and jerked it off, breaking a cord fastened to the watch which went around my neck, and said, “I’m all right—go to hell, you damned old fool.” The value of the watch was $15.

On his cross-examination he stated that this took place in the day time, along towards night; that there were a number standing around; that he had had a previous transaction that day with Hall about a watch; half or three-quarters of an hour before; that before he left the , hotel Hall accused him of having his watch; that Ranger was a constable.

*Alanson Ranger*testified as follows: On the 19th of March, towards night, Eli called on me to execute a search warrant against a man who had his watch; I went over and Johnson was going along the road, and Eli said, “ Damn him, there he is now.” We Went out and overtook him upon Center street. I said to him, “ if you have got Eli’s watch, you had better give it up.” . He said he hadn’t, and said, “ search me.” He threw his clothes open and I took out a watch and handed it out and asked if it was Ms; Eli said “no, let me take it.” Then I asked if he had another, and he took out a composition hunter’s watch, that had a chain on it, and I said, “ Eli, is that your’s?” He said “ no,” but he took hold of it and yanked it loose, breaking the chain, and Eli said, “ Damn Mm, I’ve got two for one-^let him go.”

*637On his cross-examination he testified that Hall called on him to assist him in recovering a watch that Johnson had got from him; that Johnson spoke about Eli wanting to trade, and Eli asked him $3 to boot; this conversation was when the watch was taken.

The people rested, and the defendant raised the question that this was not a case of robbery. The court held otherwise, and the defendant excepted.

*George F. Johnson*was recalled and further cross-examined, and testified that he made a complaint against Hall before Esq. Stevens; that he saw Mr. Davis, the then district attorney, there, and that he told him he had settled, and that Hall wanted to keep one of the watches till he found his, and that he would not settle in any other way; witness also stated that he did not know but he and Hall then went to the tavern and drank together; he also stated that by that settlement he got back one of the watches.

The defendant’s counsel asked that the court charge,

1. That there is no felonious intent, proven; the court refused so to charge, and the defendant’s counsel excepted.

2. That if Hall believed that he was getting his own property back or security for it, that then there is no felonious intent proven. The court refused so to charge, to which refusal the defendant’s counsel excepted.

3. That the mere snatching of the watch from the hands of the complainant does not constitute robbery, for the reason that there was no injury done to the person, and there was no struggle for the possession of the property, and there is no proof that there was any terror excited in the mind of the complainant, or that any threats were made. The court refused so to charge, to which refusal the defendant’s counsel excepted.

The court charged as follows: Gentlemen of the jury, this case is in a very narrow compass. Some questions of law have been discussed in your hearing, and they have been disposed of as you have heard. The -indictment is *638for robbery in the first degree; the statute defines that offense in these words: “ 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.” The evidence upon the part of the prosecution consists of that • of the prosecutor and the constable, and is, that Hall met the complainant on the highway, and the' complainant exhibited one watch which Hall took, but said it was not his, and the complainant then exhibited another, which the defendant seize dj breaking the chain. The court are of the opinion that if you believe the statements of these witnesses, the evidence will justify you in finding that that degree of violence was used by the defendant which will constitute the offense, provided all the other elements of the offense are established. To which the defendant’s counsel excepted. The defense claims that there is evidence that the defendant believed that this was his watch, or that he had the right to take it, to secure the return of his watch. There is no evidence that this was his belief, and the instruction to you is, that if you believe the evidence of the people, the testimony is sufficient to warrant you in determining that the defendant did commit the offense charged in the indictment. To which the defendant’s counsel excepted.

The jury found the defendant not guilty, and the case was removed by *certiorari*to this court.

■ *W. H.*Kelsey, for the defendant.

There is no felonious intent proved. To constitute robbery, the property must be taken *animo furandi,*with a felonious intent to appropriate the goods to the offender’s own use. And there must be a felonious intent with regard to the goods charged in the indictment; it is not *639enough that the prisoner had at the same time an intent to steal other goods. (2 *East P.*C., 652, *cited at page*894, *Roscoe’s Crim. Ev.)*

In this case there is no intent to steal shown; the whole of the testimony shows that the defendant intended to recover his own property, that he alleged the complainant had improperly obtained from him; and when he found that he cctold not get his own property, he seized the property of the complainant as surety for his own. The judge, therefore, erred in refusing to charge that the felonious intent, the *animus*furandi, was no.t proven.

And he, also erred in charging that “the court are of opinion that, if you believe the evidence of the people, the testimony is sufficient to.warrant you in determining that the defendant did commit the offense charged in the indictment,” thus taking the whole question of felonious intent, in effect, away from the jury.

The felonious intent is the gist of the offense. If the defendant snatched the watch supposing it to be his own, or to compel the complainant to return to him his own watch, the offense is not robbery. And the jury should have been left to determine, from all the facts and circumstances proved, what that intent was. The refusal to charge as requested by defendant’s counsel, and the charge as made, left nothing for the jury to pass upon except the credibility of the witnesses. The question of intent is always a question of fact to be determined by the jury, under proper instructions from the court.

All the circumstances tend to *disprove*the felonious intent. The defendant procured a constable to go with him in search of the complainant, for the purpose of recovering his own property; and when the complainant refused to deliver defendant’s watch, the defendant snatched the watch that he did produce. We insist that it should have been left to the jury to say with what intent the act was done.

*640*Scott Lord,*for the people.

I. The offense of robbery was fully made out. The breaking of the chain which guarded the-watch was a sufficient violence to the person. (Citing *McCloskey*v. *The People,*5 *Park. Cr. R.,*306; 4 *Bl. Com.,*243; 2 *East P. C., ch.*16, § 124; *Rex*v. *Mason, Russell & Ryan’s Crown Cases,*419; *The Case of Lapier,*2 *East P. C.,.*557, 708; *Wharton’s Crim,. Law, 4th ed.,*1700 ; *East’s Pleas of the Grown,*709; 2 *Russ. on Crimes,*989, 997; 19 *St. Tr.,*806.)

II. There was no error in the refusals to charge as requested.

1st. The court could not say that no felonious intent was proven, for it would have been taking the case entirely from the jury.

2d. The second request was wholly hypothetical. There was no' evidence, not the least, to base it on.

The third request was based upon reasons not only insufficient, but inapplicable to this case. We might say the defendant did all he could to keep his watch, but force or violence may exist independent of any struggle on the part of one assailed.

TTT- The charge of the court was correct. The jury were told that, in the opinion of the court, the evidence, if they believed it, would justify them “ hn finding that that degree of violence was used by the defendant which will constitute the offense, *provided■*all the other elements of the offense are established.”

If the defendant wanted any further instructions given he should have requested the court accordingly. If this is not a case of robbery, what is it? It is not a "-ase of. larceny, for “there can be no robbery without violence, and no larceny with it.” *(Long*v. *The State,*12 *Ga.,*18.)

“The robbery being made out by proof of a taking by *force,** * * the *animus furandi*is to be inferred from the appropriation.” *(Ib.,*325.)

*641“When the tendency of an act is *direct*and *manifest,*the defendant must always be presumed to have *designed*the *result*when he *acted.”*(Whar. *Cr. Law, 4th ed.,*§ 633.)

*By the Court,*E. Darwin Smith, J.

The defendant’s counsel on the trial requested the court to charge the jury that there was no felonious intent proved, and the judge refusing so to charge, the counsel for the defendant duly excepted. This exception is not well taken. It was a question for the jury whether a felonious intent was proved. The judge should not have charged as requested. It would have been a clear invasion of the proper- province of the jury. The intent of the prisoner in taking the watches was to be inferred from the evidence, and was not a question of law.

The second request to charge was, that if Hall believed that he was getting his own property back or security for it, then there was no felonious intent—was clearly a sound proposition if predicated upon any evidence — but the judge thought there was no evidence to call for such a charge, and did in substance so say to the jury, and to this part of his charge there is no exception.

The third request to charge that mere snatching of the watches would not constitute robbery, and the exception to the refusal of the judge so to charge, I will consider in connection with the exceptions to the charge.

It seems to me that the exceptions to the charge are well taken. The judge said that the court are of opinion that if you believe the statements of these witnesses, the evidence will justify you in finding that the degree of violence was used by the defendant which will constitute the offense, provided all the other elements of the offense are established. And at the close of the charge the learned judge said further: “ The instruction to you is, that the testimony is sufficient to warrant you in determining that the defendant did commit the offense charged in the indictment.’

*642It seems to me that these portions of the charge did virtually relieve the jury from their proper duty to pass upon the force of the evidence. The judge had refused to charge that there was no felonious intent, and that the mere snatching of the watches from the hands of the complainant did not constitute robbery. Taking these refusals with the charge, as made, I think the jury must have understood that they were virtually instructed by the court that the offense was made out and that it was their duty to convict the prisoner.

Under this submission, I think it quite doubtful whether the jury, passed at all upon the question of the felonious intent, which is of the very essence of the offense. They doubtless believed that the prisoner took the watches from the person of Johnson, as stated by him and the witness, Ranger, and supposed that if they believed that evidence they were bound to convict.

Such at least may have been their understanding of the charge. It was not at least in explicit terms submitted to them to consider with what view, purpose or intent the prisoner took the watches. The crime of robbery is a high offense, one of the highest in, the law, and involves, upon a conviction in the first degree, imprisonment in the State prison for a term not less than ten years. It consists, as-defined by statute (2 *Rev. Stat.,*677, *sec.*55), “in the felonious 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 pretended in this case that the prosecutor was put in any fear of injury to his person. The crime rests upon the other portions of the definition. The question was whether it was taken with a felonious intent, by violence to the person of the prosecutor.

The judge instructed' the jury in substance that the degree of violence used was sufficient to warrant them in *643finding the defendant guilty of the offense. In this I think the learned judge erred, although the view taken by him is probably warranted by several English cases.

TM The mere snatching a thing from a person has, in terms, "never been considered robbery, but has been in repeated cases held not to be robbery. The snatching of a bundle suddenly from the hand of a boy in the street was held not to be robbery in *McCauley's case*(1 Leach, 287; 1 *Roscoe Crim. Ev.,*898; 2 *Russ.,*67).

The snatching of an umbrella suddenly out of the hand of a woman, as she was walking in the street, was held not to be robbery. (2 *Foster,*708; 2 *Russ, on Crim.,*67.)

In *Stewart’s*case it was ruled by Lord Holt that snatching a hat and wig from the head of a person walking in the street was no robbery. (2 *East,*702.)

And yet, in several cases quite like this, snatching from the person was held to be robbery. In *Lanier's case (2 East P. C.,*57 *and*708), earrings were pulled suddenly from the ears of the prosecutrix in a crowd, with such violence as to draw blood from her ears. This was held to be robbery. And in *Mason’s case (Russ. & Ryan,*419), the prisoner seized the seal and chain of the prosecutor’s watch and pulled it from the fob, and it being secured by a steel chain around the neck, broke the chain by two or or three jerks, and made- off with the watch. This was held to be robbery.

But I do not believe in such law, and do not think these cases were rightly decided. These are really nothing but cases of snatching from the person. It is, it seems to me, straining the law to hold that these cases are really distinguishable in principle from those above cited and numerous other cases holding that mere snatching from the person is not robbery. The fact that a little blood was drawn from the ear in the *Lazier*case, and two or three jerks were made to break the chain holding the watch around the neck in *Mason’s*case, are circumstances *644of dissimilarity too insignificant and non-essential to turn a case of larceny—if the intent were felonious—into a case . of robbery. It seems to me almost trifling with fact and law to say the earrings in *Lapier’s*case, and the watch in *Mason’s,*were taken with such violence to the person, within the proper sense and meaning of that expression in our statute, as to constitute the crime of robbery.

A much more rational view of the law of robbery is taken in the case of *McLosky*v. *The People, in*5 *Park. Crim. Pep.,*366. In this case, Judge Emott says: “The property must be taken by violence to- the person which means more than an 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 gist of the crime of robbery is the force and terror. (1 *Hale P. C.,*552; 2 *Past P. C.,*707.)

The especial heinousness of the offense of robbery .over simple larceny, consists in the terror and fear inspired, and in the apprehension and danger of injury to the person involved in the commission of the offense. When there is nothing to inspire fear, there must be superior force, and the property must be relinquished upon a struggle, and upon compulsion. In the *Lapier*case a mere child might have snatched the earrings from a grown up, strong woman. It would be preposterous in such a case to say that the crime was robbery. So in *Mason’s*case, a boy of ten or twelve years of age might, by surprise, have snatched the watch and broke the chain by a sudden jerk or two from a strong, athletic man, and run off with it before he could be arrested or hindered. I cannot think, in such a case, the boy could be convicted of robbery. The violence .to the person essential to constitute robbery, must be actual, and not constructive. There must be such force employed, or such degree of force, as shall overcome the free agency or power of resistance of the person despoiled. This rule only applies to cases where the property *645is taken from the person, or in his presence, and against his will, by violence to his person and with a felonious intent, and not to that class where property is taken by putting a person in fear. Upon this question of felonious intent, it seems to me the facts in this case rather repel the inference of a felonious intent. The property was taken in the day time, in the public street of a populous village, and in the presence of a constable and other persons, and where it was impossible for the prisoner to get away with the property, and where the facts were necessarily all open and so well known as to render it impossible for the prisoner to appropriate the property to his own use, or deprive the owner of it except temporarily.

For these reasons, I think the exceptions to the charge and to the refusal to charge as requested, that mere snatching was not robbery, should be allowed, and the case should be submitted to another jury.

The conviction should therefore be reversed, and a new trial ordered.

Johnson, J., concurred. J. C. Smith, J., dissented.