person procuring a tradesman to sell him goods as for ready money, direct him to send them to his lodgings, and then deliver fabricated bills in payment, retaining the goods, he may be convicted of obtaining them by false pretences.(x) Some difficulty has arisen as to what shall be considered a false token. It is clearly not a mere affirmation or promise, but must be something real and visible—as a ring, a key. or a writing. And even a writing would not suffice, unless it was in the name of another, or so framed as to afford more credit than the mere assertion of the party defrauding.(y) It does not extend to cases where a man procures goods on his own account, with intent to steal them.(z) So letters declaring a falsehood, with intent to defraud, are not privy tokens, within the statute. (a) Indictment.] In an indictment under the section of the statute respecting obtaining goods by false pretences, according to the rules of construction applicable to the English statutes on this subject, which rules seem equally applicable to ours, the false pretences or tokens made use of, must be set forth and must be negatived by special averments. (b) The whole of the pretences charged need not, however, be proved. Proof of part of the pretences, and that the property was obtained thereby, is sufficient. (c) In the statement of the means by which the fraud was effected, it will be necessary to observe all possible accuracy; for where it was alleged that the defendant said he had paid a sum of money into the bank of England, and it was proved that he merely alleged "the money has been paid to the bank," the variance was holden fatal. (d) But where the pretence alleged was a wager made" with a colonel in the army, then at Bath," without naming him-the court held it to be sufficient. (e) So, a basket is sufficiently described in the proceedings, under the general term "parcel."(f) And it does not seem necessary to describe the false pretences with greater minuteness than that with which they were presented to the mind of the party injured at the time the imposition was practiced upon him.(g) The intent to cheat should be stated in every material part of the indictment.(h) The property which the defendant obtained should also be stated accurately. In a late case an indictment was held bad on the ground that the instrument given in evidence was not, as stated, an order for the payment of money.(i) The owner of the property obtained by false pretences, should be stated with accuracy.(k) And in an indictment for false personation, the name of the party personated must be stated. Evidence.] As to the intent, it may be implied sufficiently from the facts of the case. It has been decided, under our statute, that a false representation authorizes the inference of an intent to defraud. (l.) Formerly if the evidence proved not only an intent to defraud or cheat, but also a pre-existing animus furandi, and a constructive taking, such as to constitute larceny, the misdemeanor being merged in the felony the defendant was entitled to an acquittal. (m) But now, by a statute in England, the defendant may be convicted although it appears, at the trial, that the offence amounts to larceny.(n) Although we have no corresponding statutory provision on the subject, the rule is presumed to be the same here as it is in England; inasmuch as both offences, under our statute, amount to felony; and therefore, one cannot be merged in the other. As we have before observed, it is not necesssary to prove the falsity of all the pretences averred in the indictment; but a single false pretence, proved as laid, though joined with others, is sufficient to support the indictment.(0) The averments as to the nature of the property and the ownership, or the person defrauded, must be also proved.(p) Proof that a party from whom a note was obtained by false pretences has been subjected to a suit, or to the payment of the money specified in the note, is inadmissible unless there be a count for obtaining money by false pretences. (q) Where several persons were indicted for obtaining money by false pretences it was objected that although they were all present when the representation was made to the prosecutor, yet the words could not be spoken by all, and one of them could not be affected by words spoken by another; but that each was answerable for himself only, the pretence conveyed being like the crime of perjury, a separate act in the person using them. The court of King's Bench, however, held that as the de (i) Russ. & Ry. 106. (0) Ante, p. 129. Roscoe's Cr. Ev. 367. 11 Wend. 557. (p) Roscoe's Cr. Ev. 369, 70. fendants were all present, acting different parts in the same transaction, they were guilty of the imposition jointly.(r) 5. ROBBERY. The definition of this offence, at common law is, a felonious taking of money or goods, of any value, from the person of another, or in his presence, against his will, by force and violence, or putting him in fear.(s) In this state, robbery is divided into two degrees. The first degree consists in 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 him in fear of some immediate injury to his person. Robbery in the first degree is punishable by imprisonment not less than ten years.(t) Robbery in the second degree consists in feloniously taking such property of another in his presence or from his person, which shall have been delivered or suffered to be taken, through fear of some injury to his person or property, or to the person of any relative or member of his family, threatened to be inflicted at some different time, which fear shall have been produced by the threats of such robber.(u) This is punishable by imprisonment not more than ten years. (v) It will be seen that the statute has not materially altered the law respecting this offence, as it previously existed. The principal variation is in the section defining the crime in the second degree. This section extends the offence to threats of injury to the person of a relation or member of the family of the person robbed; a case not within the terms of the previous law, but within its spirit and meaning.(w) 1st. As to the felonious taking.] The taking may be of money or goods or any kind of personal property. The value of the property taken is immaterial; provided it possess any value whatever, sufficient for the purpose of being called property. A penny as well as a pound, forcibly extorted, makes a robbery: the gist of the offence being the force and terror.(x) But something must be taken, and it must be of some value ;(y) otherwise the offence will be only that of an assault with an intent to rob.(z) To constitute a taking, the property must have passed into the posses sion of the offender. So that if a purse were fastened to the girdle of its owner, which the thief cut, and the purse fell to the ground, this is no robbery; but if the robber once had the property in his hands, though it was immediately relinquished, the offence is complete. (a) And therefore to snatch an ear-ring from a lady's ear, so that the ear is torn in the operation, is robbery, though it is dropped immediately into the hair and is there found by the owner. (b) And it is not necessary that the property should continue in the possession of the robber, for any length of time. Thus where a robber took a purse of money from a gentleman, and returned it to him immediately, saying, "If you value your purse, you will please to take it back and give me the contents of it," but was apprehended before the gentleman had time to give him the contents of the purse, the court held there was a sufficient taking.(c) The taking must be from the person or in the presence of the owner. The thing must be completely removed from the person. Removal from the place where it was, so as to constitute a simple larceny, if it remain throughout with the person, is not sufficient. (d) But if the property be taken in the presence of the party this will suffice. So that to take a horse standing near its owner, or to drive away his sheep or cattle before his face, after putting him in fear, is robbery at common law as well as under the statute. (e) And if a man take a purse which another has thrown away through fear, or his hat which has fallen from his head, or his property from a servant in his presence, he will be considered as having taken it from the person. (f) But where thieves struck money out of the owner's hands, and by menaces drove him off, so that he could not take it up, and then seized it themselves, it not appearing that it was taken up in the presence of the owner, the prisoners were acquitted.(g) Where the offence of robbery is once actually completed, by taking the property of another into the possession of the thief, it cannot be purged by any subsequent re-delivery.(h) Not only a taking in fact but a taking in law is sufficient to constitute a robbery. It has therefore been holden that if thieves attack a man to rob him and finding little or nothing about him, force him, by menace of death, to swear to fetch them money, which he does accordingly, and delivers it to them, while the fear of the menace still continues upon him, and they receive it, this is a sufficient taking in law. (i) 66 The taking must in all cases be accompanied with a felonious intent. But if a man, with such intent, say—“ Give me your money"-" Lend me your money"-" Make me a present of your money," or words of the like import, they are equivalent to the most positive order or demand; and if any thing be obtained in consequence, such a taking will be within the definition of robbery.(k) The taking must not precede the violence or putting in fear. That is, a subsequent violence or putting in fear will not make a precedent taking, effected clandestinely, or without either violence or putting in fear, amount to robbery. Thus where a thief clandestinely stole a purse, and on its being discovered in his possession, denounced vengeance against the party if he should dare to speak of it, it was holden to be larceny only, and not robbery; as the words of menace were after the taking of the purse.() 2d. As to the taking being againsT THE WILL of the party.] It is certain that the goods must be taken against the will of the possessor; for if three persons agree to rob a fourth, in order to obtain the reward, to be shared among them all, and the last consents to the scheme, it is impossible that any robbery can be committed. (m) But where a man knowing the road to be infested with highwaymen, puts a little money in his pocket, and goes out for the purpose of detecting and securing them, and on being accosted, delivers his money, and then succeeds in apprehending the offender, the latter will be guilty of robbery.(n) 3d. As to the violence or putting in fear.] The words of the statute, as well as of the common law definition, are violence or putting in fear-in the alternative; so that if the property be taken by either of these means, against the will of the party, it will be sufficient to constitute robbery.(0) Where violence is used it is not necessary to prove actual fear. But if fear were a necessary ingredient the law would presume it where there appears to be a just ground for it.(p) Thus where a man is suddenly knocked down, and his property taken while he is senseless, there can be no room for terror, and yet it is evident that this is a robbery.(q) With respect to the degree of actual violence, where the taking is ef fected by that means, it appears to be well settled that a sudden taking or snatching from a person unawares is not sufficient, unless some injury be done to the person, or unless there be some previous struggle for the possession of the property. Thus, where a person was carrying a bun (k) 2 Russ. on Cr. 64. (1) Idem, 66. 1 Hale, 534. (m) Fost. 123. 3 Chit. Cr. L. 802. (n) Fost. 129. (0) 2 Russ. on Cr. 66. 2 East's P. C. 708. (p) Roscoe's Cr. Ev. 738. 2 East's P. C. 711. 3 Chit. Cr. L. 803, n. A. (q) 2 East's P. C. 711. |