
    Case 38 — INDICTMENT—
    January 18.
    Glass v. Commonwealth.
    APPEAL PROM CHRISTIAN CIRCUIT COURT.
    1. Robbery, indictment eor — What evidence necessary to sustain • the charge. — The offense alleged in the indictment was that the defendant feloniously took certain treasury notes, the property of George Messmore, “ in his presence and against his will, by putting him in fear of some immediate injury to his person.”
    To authorize a conviction of the' offense so charged, and traversed by the plea of not guilty, it was incumbent on the commonwealth to prove the fact that the treasury notes were taken in Messmore’s presence by putting Mm in fean\ and the court ought so to have instructed the jury.
    2. An instruction applying the rule as to a reasonable doubt to the description of the treasury notes instead of the guilt or innocence of the defendant was objectionable.
    
    3. An instruction authorizing a verdict of guilty upon proof of robbery by violence or force, though npt alleged in the indictment to have been so committed, and although the charge was not proved that the robbery was committed by putting Messmore in fear, was erroneous.
    
    John W. McPherson,.......For Appellant,
    CITED
    Criminal Code, secs. 271, 126, 258, 259, 273.
    1 Wharton, secs. 362, 402, 118, 637.
    3 Greenleaf’s Evidence, secs. 229, 223-233.
    2 Wharton, secs. 1701, 1704.
    Revised Statutes, 1 Stanton, 372, sec. 2, page 381.
    1 Russell on Crimes, 879.
    2 Bush, 84, Commonwealth v. Shields.
    5 Bush, 199, Perrit v. Crouch and Commonwealth.
    2 Bishop’s Criminal Law, 769, 680, 973, 969.
    . 1 Hale’s Crown Pleas, 534, 532, and note.
    2 Duvall, 160, Rhodes, &c. v. Commonwealth.
    4 Ohio, 540, Mathews v. State.
    1 Hawkins’s P. C. 214.
    3 Bush, 511, Taylor v. Commonwealth.
    1 Lewis’s C. C. 301, Rex v. Hughes.
    
      »Tohn Rodman, Attorney-General, . . . For Appellee,
    CITED
    Roscoe’s Criminal Evidence, 891.
    1 Russell on Crimes, 867.
    1 Duvall, 150, Commonwealth v. Brooks.
    16 B. Mon. 86, Walston v. Commonwealth.
    1 Met. 9, Tipper v. Commonwealth.
    17 B. Mon. 409, Comley v. Commonwealth.
    Criminal Code, sec. 271.
    5 Bush, 362, Uriel v. Commonwealth.
   JUDGE HARDIN

delivered the opinion oe the court.

Indicted for robbery, tbe appellant, Warner Glass, was tried, convicted, and sentenced to the penitentiary for three years; and tbe circuit court having refused to grant him a new trial, be has appealed to this court.

Several errors and irregularities are complained of, but as to all of them, except such as relate to instructions, it is deemed sufficient to say that, as presented by tbe record, they are not such as constitute grounds of reversal under tbe law regulating criminal procedure in this court.

Tbe offense alleged in tbe indictment was that tbe defendant feloniously took certain treasury notes, the property of George Messmore, “in bis presence and against bis will, by putting him in fear of some immediate injury to bis person.” To authorize a conviction of tbe offense so charged and - traversed by tbe plea of not guilty, it was incumbent on tbe commonwealth to prove tbe fact that tbe treasury notes were taken in Messmore’s presence by putting Mm in fear, and tbe court ought so to have instructed the jury, but virtually refused to do so by rejecting tbe second instruction, which seems to have been asked by the defendant.

Tbe first instruction given is at least objectionable in applying tbe -rule as to a reasonable doubt to tbe description of tbe treasury notes instead of the guilt or innocence of the defendant; and the last instruction given is deemed erroneous in authorizing a verdict of guilty upon proof of robbery by violence or force, though, not alleged in the indictment to have been so committed, and although the chai’ge was not proved that the robbery was committed by putting Messmore in fear.

Wherefore the judgment is reversed, and the cause remanded for a new trial, and for further proceedings not inconsistent with this opinion.  