dle along the street in his hand, after dark, when the prisoner ran past him and snatched it away suddenly, it was holden that the act was not done with the degree of force and terror necessary to constitute robbery.(r) So, to seize a parcel carried on the head, to carry away a hat and wig without force, and to take an umbrella of a sudden out of another's hand, have been respectively holden to be mere larceny. (s) But where a man snatched at the sword of a gentleman hanging at his side, and the latter, perceiving the design, laid hold on the scabbard, on which a contest ensued, and the thief succeeded in wresting the sword from the owner, his offence was holden to be robbery.(t) So, snatching an ar ticle from a man will constitute robbery, if it is attached to his person or clothes so as to afford resistance.(u)

Nor will it excuse the violence, that it was done under pretence of law; for where a bailiff handcuffed a prisoner, and used her with great violence, for the purpose of extorting money from her, he was holden to be guilty; as were also a number of men for seizing a wagon, under pretence that there was no permit, when none was in reality necessary.(v)

To constitute a robbery in the first degree, where no actual violence is used, but a putting in fear is relied on, the prosecutor must show that he was put in fear of some immediate injury to his person. To bring it within the second degree, he must show that the property was delivered or suffered to be taken through fear of some injury to his person or properly, or to the person of any relative or member of his family, threatened to be inflicted at some different time, which fear was produced by the threats of the robber.

Our statute, it will be noticed, extends only to fear of injury to person or property, and does not embrace those cases in which the fear excited has been of injury to the character of the person robbed. At common law, threats of the latter description were sufficient to constitue robbery; as where the robber obtained the money from the party by threatening to accuse him of an infamous crime. (w)

The fear of injury to the person is that which is commonly excited on the commission of this offence; and where property is obtained by this means, it will amount to robbery, though there be no great degree of terror or affright in the party robbed. It is enough if the fact be attended with such circumstances of terror, such threatening by word or gesture, as in common experience are likely to create an apprehension of danger,

(r) 2 Russ. on Cr. 67. 1 Leach, 287. 2 Car. L. Repos. 90. Roscoe's Cr. Ev. 737.

(8) 3 Chit. Cr. L. 804. 1 Leach, 290, and in notes.

(t) Id. ib.

(u) Russ. & Ry. C. C. 419. 1 Leach, 335, 320. 2 Car. L. Repos. 94.

(v) 1 Leach, 280. 1 East's P. C. 709. (w) 3 Chit. Cr. L. 803.

and induce a man to part with his property for the safety of his person.(x) It is not necessary that there should be actual dunger; for a robbery may be committed without using any offensive weapon, as by using a tinder-box, or candlestick, instead of a pistol. A reasonable degree of danger, caused by the exercise of a constructive violence, is sufficient. And where such a terror is impressed upon the mind as does not leave the party a free agent, and, in order to get rid of that terror, he delivers his money, he may clearly be said to part with it against his will. Nor need the degree of constructive violence be such as in its effects necessarily imports a probable injury. For when a villian comes and demands money, no one knows how far he will go.(y)

It seems, also, that fear of violence to the person of the child of the party whose property is demanded is regarded, at common law, in the same light as fear of violence to his own person. (2) This would clearly be a sufficient threat to constitute robbery in the second degree under

our statute.

The fear necessary to constitute the crime may exist, though the property be taken under a color, and on the pretence, of a purchase: as where the prisoner took a quantity of wheat worth eight shillings, and forced the owner to take thirteen pence halfpenny for it, threatening to kill her if she refused, the offence was held to be a robbery, by all the judges.(a)

The cases in which the offence of robbery has been committed by means of a fear of injury to the property of the party,are principally those in which the terror excited was of the probable outrages of a mob. Thus where a mob entered a house, and the prisoner, who was one of them, demanded money, and said that if the prosecutor did not give his men something handsome for them to drink, his house must come down; for fear of which, the prosecutor gave them money; this was held to be robbery.(b)

Principals and accessaries.] The same general rules which prevail in other cases of principals and accessaries, apply also in the case of robbery. Thus, if several persons come to rob a man, and they are all present, and one only actually takes the money, it is robbery in all. (c) So if A., B. and C. come to commit a robbery, and A. stand sentinel at the hedge corner to watch if any person should come, and B. and C. commit the

(x) Fost. 128. 4 Black. Com. 243. 2 Russ. on Cr. 71.

(y) 1 Leach, 196, 7. 2 East's P. C. 713, 727.

(z) 2 East, 718, 735.

(a) 2 Russ. on Cr. 72. 2 East, 712. (b) Roscoe's Cr. Ev. 744. 2 East, 712, 729, 331.

(c) 1 Hale, 534. 1 Hawk. P. C. ch. 34, s. 5.

robbery, it will be robbery in A. also, though he was at a distance from them and not within view. (d)

Indictment.] The indictment for robbery must state an assault upon the person; and that such assault was made feloniously. (e) And the taking must be charged to have been with violence, and against the will of the party; and the usual statement is, "certain goods, &c. then and there feloniously and violently did steal, take, &c." But the word violently is not essentially necessary, if it appears, upon the whole, that the fact was committed with violence. (f) This is the rule at common law. It may, perhaps, admit of a doubt whether an indictment under our statute should not contain the word violently; inasmuch as it is used by the statute in describing the offence.

It is considered as uncertain whether an indictment at common law should charge that the party was put in fear; though, as such statement is usual, it is said to be more safe to insert it.(g) But it seems clear, that in an indictment under our statute, in cases where the putting in fear is the means by which the taking is effected, such a charge is necessary; especially where the indictment is drawn with reference to the offence of forgery in the second degree. In general, however, no technical description of the fact is necessary, if upon the whole it plainly appear to have been committed with violence, against the will of the party.(h)

Evidence.] Prove a larceny by the prisoner from the person of the prosecutor, or in his presence, under the circumstances and with the incidents above mentioned as constituting the offence. Prove the goods to have been of some value to the prosecutor. It does not seem necessary to prove that the robbery was perpetrated at the local venue, as laid in the body of the indictment. (i) Therefore, where a robbery was alleged to have been in a field near the king's highway, and it was not proved to be near any highway, it was considered immaterial.(k) So where the indictment charged that the prisoner robbed A. B. in the house of J. S., and it was not proved in whose house the robbery was committed, it was holden immaterial.(1)

If at the trial any of the circumstances necessary to constitute robbery are wanting, but the taking be proved, the defendant may be acquitted of the robbery and found guilty of simple larceny.(m)

(d) 2 Russ. on Cr. 87. 1 Hale, 534. (e) Id. ib.

(ƒ) 2 Leach, 563.

(g) 2 Russ. on Cr. 90. 2 East's P. C. 783, 4.

(h) 2 East's P. C. 708.

(i) Matt. Dig. 276.

(k) Russ. & Ry. C. C. 9.
(1) Id. ib. Pye's case, n.

(m) Rep. Temp. Hardw. 115. Com.
Rep. 478. 2 Stra. 1014.

Assault with intent to rob.] If the crime of robbery was not completed, the prisoner should be indicted for an attempt to rob. But if it appears, upon the trial of such indictment, that the offence of robbery was perpetrated by the prisoner, he cannot be convicted of an assault with intent to commit it.(n) Nor can he be convicted of an attempt to rob after a trial and acquittal or conviction for the robbery. (0) The assault will be proved in the same manner as the assault in robbery, only that the completion of the offence, in taking the prosecutor's property from his person or in his presence, will be wanting. (p) The assault must be upon the person intended to be robbed. Therefore where the assault was upon a post-boy driving a carriage, and the intention was to rob a gentleman in the carriage, the court held the indictment could not be sustained. (9) But no actual demand of money, &c. is necessary upon the charge of an assault with intent to rob.(r)

The intent to rob is a material part of the offence, and must be alleged in the indictment.(s) This intent will be gathered from the general conduct of the prisoner at the time. Menaces, threats, violence, and in short whatever conduct which, if it had been followed by a taking of property would have constituted robbery, will in this case be evidence of an intent to rob. The prisoners rushed out of the hedge upon the prosecutor, who was the driver of a return chaise, and one of them presenting a pistol to him, bade him stop, which the prosecutor did, but called out for assistance. On this, one of the prisoners threatened to blow his brains out if he called out any more, which he still continued to do until he obtained assistance and took the men, who had made no demand of money. They were convicted of an assault with intent to rob.(1)

Attempts to rob.] By the revised statutes it is provided that every person who shall knowingly send or deliver, or make any letter or writing, threatening therein to accuse any person of any crime, or to do any injury to the person or property of any one, with a view or intent to extort or gain any money or property belonging to another, shall, upon conviction, be adjudged guilty of an atttempt to rob, and shall be punished by imprisonment not exceeding five years. (u)

(n) 2 R. S. 702, § 26.

(0) Id. § 28.

(p) Roscoe's Cr. Ev. 754. (9) 1 Leach, 380.

(r) 2 Russ. on Cr. 617.
(8) Id ib. 5 T. R. 169.
(t) 1 East's P. C. 418.
(u) 2 R. S. 677, § 58.

6. EMBEZZLEMENT.

Embezzlement is a species of larceny; and the term is applicable to cases of stealing by clerks, servants or carriers of property coming into their possession by virtue of their employment.

This offence does not depend solely upon the statute. Our statute is conformable to the English act, which Mr. East observes is merely declaratory of the common law. (v)

The provisions of the revised statutes respecting embezzlement are as follows: If any clerk or servant of any private person or of any copartnership, (except apprentices and persons within the age of eighteen years,) or if any officer, agent, clerk, or servant of any incorporated company, shall embezzle or convert to his own use, or take, make way with, or secrete, with intent to embezzle or to convert to his own use, without the assent of his master or employers, any money, goods, rights in action, or other valuable security or effects whatever, belonging to any other person, which shall have come into his possession, or under his care, by virtue of such employment or office, he shall, upon conviction, be punished in the manner prescribed by law for feloniously stealing property of the value of the articles so embezzled, &c., or of the value of any sum of money payable and due upon any right in action so embezzled.(w)

As the punishment for embezzling property of a less value than $25, is the same as that of petit larceny, viz. imprisonment in a county jail, this offence does not properly belong in the chapter respecting offences punishable by imprisonment in a state prison. But such is the arrangement of the revisers, and for greater convenience we have followed it.

Under the above section of the statute it has been decided that an indictment for embezzlement lies against a clerk or servant for converting to his own use the money, &c. of any other person, which shall have come into his possession, &c. by virtue of his employment. And that the words any other person in the above section which are italicised, mean any person other than he who is guilty of the embezzlement.(x) It has been decided also that a bar-keeper in an inn, entrusted to carry letters to and from the post office, who fraudulently converts to his own use a letter enclosing money, given to him to carry to the post office, is guilty of embezzlement; and to convict him it is not necessary to show that he broke open the letter, or fled afterwards, or to show the dissent

(v) 2 East's P. C. 418. (w) 2 R. S. 678, § 59.

(x) People v. Hennessey, 15 Wend.

147.