#### STATE, Respondent, *v.*JOHNSON, Appellant.

(No. 1,632.)

(Submitted October 2, 1901.

Decided October 21, 1901.)

*Criminal Law*— Robbery—Definition—Instructions.

1. under Penal Code, Sec. 390, defining robbery as tbe felonious taking of personal property in the possession of another from his person or immediate presence, and against his will, “accomplished” by means of force or fear, an instruction defining robbery in the same terms, except using the word “accompanied,” is reversible error.

2. An erroneous instruction is presumptively prejudicial.

*Appeal from District*Court, *Silver Bow County; William*Clancy, *Judge.*

George Johnson was convicted of robbery, and he appeals.

Reversed.

*Mr. B. S.*Thresher, for Appellant.

*Mr. James Don-ovan, Attorney*General, for the State.

MR. JUSTICE PIGOTT

delivered the opinion of the court

The defendant has appealed from a judgment of conviction for the crime of robbery, specifying as the only error the giving by the district court of the following instruction: “Robbery *10is the felonious taking of personal property from the possession of another, from his person or immediate presence, and against his will, accompanied by means of force or fear.”

The attorney general insists that this instruction states all the elements necessary to constitute robbery, which, by Section 390 of the Penal Code, is defined to' be “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” He argues that the definition given hy the instruction is the substantial equivalent of the statutory definition. We are unable to agree with him. Between “accomplished” and “accompanied” a clear distinction in meaning exists; for example, thunder often accompanies lightning, but thunder is not the means or agency whereby the physical results of lightning are accomplished. Again, the means by which an act could have been accomplished may have accompanied the doing of the act without being the efficient means or agency— that is, without accomplishing it. A deadly weapon or a squad of armed soldiers is a means of force; so either may inspire fear ánd in that sense be the means of fear; but it cannot correctly be said, as matter of law, that because such means of force or fear accompanied an act the act was accomplished thereby. There can be no robbery unless the taking is accomplished, that is, effected, by means of force or fear. The agency — the means —whereby the felonious taking is effected, that is, accomplished, must be force or fear, otherwise robbery is not committed., .Many felonious asportations from the person or immediate presence of another are accompanied, that is, attended, bv means of force and (perhaps) fear withooxt being accomplished by means of either. A. feloniously and against B.’s will takes from the person of B. a chattel in his possession, the' taking being accompanied, but not accomplished, by means of force. Although A. may be guilty of larceny, he is not guilty of robbery. The means of force and fear may accompany — that is, be present at, go with, or be associated with — a felonious,taking and yet not be the means, or agency, by which the taking is accomplished — - *11that is, effected, consummated, completed, or executed. Tbe instruction would not be bettered by eliminating tbe words “means ofit would then read: “Robbery is tbe felonious taking of personal property from tbe possession of another, from bis person or immediate presence, and against bis will, accompanied by force or fear'.” Tbe instruction would still be fatally bad, for tbe taking may be accompanied by force and fear and yet not. be accomplished by either.

Whether tbe instruction declares that, in robbery, tbe taking-need not be from tbe person or immediate presence of another but is sufficient if it be from tbe possession of another, we do not decida . As the question whether tbe instruction .is open to this objection is not likely to arise on a new trial, we express no opinion thereon.

Tbe defendant was entitled to a- correct instruction defining tbe crime of which be- stood charged.1 An essential element was ■ omitted in tbe instruction given. This was erroneous and, presumptively, prejudicial to tbe defendant.

Tbe judgment is reversed, and tbe cause is remanded for a new trial.

*Reversed and remanded.*