New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1851-07-03
LAW COURTS.
DECISION IN THE WALSH CASE
THE PRISONER DISCHARGED
"E "fC .
u. s. Commissioners ONCE WEDNESDAY. July q

America nv and through the action and complaint of
Anthony Barclay Esq, Her Britannia MaJestys Con
sui al the Port Of New York, demanding that Ste
phcn Walsh and eight others be delivered up to the
British authorities, pursuant TO the provisions OF the
10Th section OF the Treaty between the United States
and Great Britain passed August Is, 1872, common
" called the Ashburton Treaiy)
That section IS IN these words II IS agreed thai
the United States and Her Britannia Majesty shall,
upon mutual acquisitions by them or Their ministers,
officers, or authorities respectively made deliver up
TO Justice all persons WHO being charged with the
crime OF murder, or assault with intent TO commit
murder or piracy or arson, or ROBBERY or forgery,
or the uiteraRce Of forged paper committed within
the jurisdiction OF either, shall be found within the
territories ofthe other provided this shall only be
done upon such evidence OF crminalty as. according
10 the laws OF The place where the fugitive IN person
shall be found. would justify his apprehension and
commitment iOI trial, If the crime Or OAenSe had there
been committed and tie respective judges and
other magistrates of the two Governments shall have
power. Jurisdiction and authority upon complaint
made under oath. TO issue a warrant for the dpprc
hcnson Of the fugitive or person 30 charged. that he
may 5e brought before such Judges or other magls-
t-ates respectively to the end thai the evidence OF
crlmnally may be heard and considered ana H. on
such hearing. the evidence be deemed sufficient -
sustain the charge, itshall be the duty OF the exam
ming Judge or magistrate 20 certify the same TO the
proper Executive authority, that a warrant mayIssue
for the surrender Of such fugitive. The expense OF
such apprehension and delivery shall be borne and
betrayed by the party VINO makes the requlslOn ana
receives the fugitive.
The evidence shows the following facts That the
prisoner, Stephen Walsh was one OF nine men under
The charge Of Richard Douse, Corporal IN the 9Ith
regiment OF foot IN the British service, at 81 John,
n b.. that on the morning Of the sth May, at abolt
hafpast !, DOuse was aroused from sleep in ms
guard-roOm that he was seized upon and tied by
The prisoner Walsh and some others OF the guard
that after his hands were tied, Walsh asked him II
he would desert tina, he declined TO DO so tnat
Walsh then took lwo keys and apenknife from the
breast pocket Of the Creat-cOat Of Douse that DouSe
subsequently searched for them, but could moi find
them that the keys were keys which opened the
wooden gate and wicket, the entrance 10 the bar
rack ground and ordnance stores that sad walsh,
with loaded freloch, told him that he must either
desert with him, or suffer himself TO be tied ana
gagged that he refused 20 desert, and that the phi
sOner, with his companions, then made tneir escape
These are the material facts as TESTIFIED TO- ana IN
the general outline, though not IN the particular CIR
cumsiances. substantially admitted by the prisoner in
his statement.
Under the treaty the following offenses are emu
merated Murder or assault with intent 10 commit
murder, piracy robbery and forgery or the ut
terance OF forged paper.
In the careful and specific enumeration OF crimes
The object has been TO exclude all political ohenSes-
treason, msprision of treason, desertion from mill
tary service and ofenses of similar character are
not embraced IN the terms OF the treaty.
The examination and commitment OF persons emu
mcrated IN the treaty provided for by the laws OF
New Ork, 2d X. >, p. 49, and would be cOnphel
with TO all ntCnls and purposes under the treaty Tor
the commitment of foreign fugitive for trial by the
testimony OF one competent credible witness, or
by the voluntary statement OF the prisoner and from
had been committed, and probable cause to beheye
the prisoner to have been guilty thereof
| The inquiry for the examining officer is whether
the evidence of the guilt OF the person charged would
| Justify the commitment of the accused for trial
| cording TO the laws in fore IN the State OF New
| York if charged with lis commission here
| The definition Of robbery at common Law IS a ie-
| lOnlous taking OF money goods OF any value from
the person of another or III his presence, against his
Will, by force and violence, or putting hum IN lear
(2d East p &. 107, 4th Black Com. 2i3, "a Russell
ON Crimes gs7 / Hawk T. C. c. "a, 3 Inst. 6S, Hale
And the Statutes or New. York following the com
mon law, defines robbery to he the feonlOuS taking
of the personal property OF another nom ms person,
or IN resenc and against ms Will by violence TO
his person. or by putting such person IN fear OF some
immediate injury to his person q X :. art ,, 90,
| p. 7Gi.)
The taking must always be accompanied with
feonious intent or ammo (urdndi, 81 Russell 99l
East p C. IS, 10 p 662, and to constitute lar
ceny II is necessary that the party should nave the
intention 10 deprive the owner OF ms property per-
Rdnenty and to convert II to the takers own use,
and make 1t his own property, the word felonious
being explained to mean that there is 10 color OF
night excuse for the act and the intent must be TO
deprive the owner, not temporarily. but permanently,
OF his property (Regna vs.. VIM. Holloway Carr
and kIrwan \. T. ei2)
The whole question then is, does the case made
bring the acts of the party accused within the legal
meaning Of the term robbery.
|. There is no evidence IN the to show that
the property taken taken from the person OF
Dou>c, or in his presence, by violence directed 10
/
instrument by which the robbery is committed The
mere element of force is not sufficient, but the intent
with which II was used as well as the degree be-
comes material. II Is IN proof that the keys and
knife were taken from the breastpocket of the Cor
pOral'S groa,coat but there is proof that the coat
or the property were on the person OF Douse-and
although violence was used 1t was not for the pur-
pose of the robbery. In the case OF Rex rs Crump,
Carr Payne 65s, II was held that person steal
ing other property, takes horse not with intent TO
| steal It, but only 10 get of more conveniently wilh
fhn oil nrr ~ prh Al
felony GarrOw let II to the jury to say whether
the prisoner had any intention of stealing the horse,
for that If he intended to steal the other articles and
| Only used the horse as a mode OF carrying on the
/ other plumber more conveniently and AS 1t were,
borrow cd the horse for that purpose he would not III
point OF law be guilty of stealing the horse and the
! prisoner was acquitted on that count.
III. There Is no evidence 10 prove any oa'waSfu-
randi tie probabilities being that the property was
taken simply TO facilitate the doscrton OF the prls-
oner and not for the purpose of converting the prop
/ crty TO has use. q Russell Crimes g9l, East
z. {. c. 10, 9s, p. 662 State rs Hawkins Porter
! 46l, Roscoe Cnm. Ev. S9i, Wharton Am Grim. Law
1874 Smith Schut Seam 492, State rs. Bonwell,
/ ct al Harrington 500, Rex rs. Holloway Carr &
| Payne, 52i) All the authorities proceed upon the
superstition that the violence necessary 10 constitute
robbery must be violence used for the purpose OF
/ appropriating the property.
In this case the violence was evidently employed
not or the purpose OF approprlating property, but
simply TO facilitate the provisions intended deSeron,
and II seems probable tina, the charge of robbery is
maze In OiCtl lnat llc PROVISIONS OF the AshOHtOn
Treaty may be used for retaining the prisoner
/ GescrCr
My opinion is, that in order to authorize the com
mment of the accused a charge of robbery, 1t
| should appear tha, the assault and violence commit
ted by HIM on Richard DouSe With a ieonlouS
intent.
That as the purpose seems merely TO have been 10
desert, and the violence committed on DouSe was
solely TO restrain him from preventing the execution
OF that design the accused cannot be charged with
The crime Of robbery, even If he atterward
united crimes amounting IN law TO larceny That
the mere fact OF taking the keys and penknlc from
lie pocket OF Dousc, could not constitute felony,
since The evidence does not denote that II done
- ammo ftrGRd,.'
The evidence is deemed insufficient 10 sustain the
charge against the accused according 10 the laws of