
    * Commonwealth versus Samuel Humphries.
    A larceny committed with actual force and violence, or with a constructive force, by any assault and putting in fear, is a robbery ; and in an indictment for such offence, an allegation of force and violence is sufficient, without alleging that the party robbed was put in fear.
    The defendant was indicted for a robbery, at this term, and was tried and convicted at the sittings after the term before Sewall, J., by whom I have been furnished with the following note of the case, which was read by him in Court previously to the prisoner’s being sentenced.
    “ In the indictment, upon which the prisoner at the bar stands convicted, the allegations are, that with force and arms, in the public highway, he feloniously assaulted- one Peter Tracy, and one silver watch and watch-key, of his goods, &fc., from the person and against the will of the said Peter, in the highivay aforesaid, by force and violence did steal, rob, take and carry away, against the form of the statute ; omitting the allegation heretofore usual in indictments for robbery, of putting in fear.”
    
    This omission occasioned some doubt in the minds of the chief justice, and the other justices of this Court, present, when the indictment was preferred by the grand jury, whether the description therein of the offence charged against the prisoner contained all the allegations essential to a technical description of the crime of robbery. Upon the conviction of the defendant, I thought him entitled to have this question examined, as the result might be some mitigation in his punishment.
    The chief justice, and Justice Parker
    
    have advised with me upon the question, and the sentence now to be pronounced is in consequence of our concurrence in the opinion, that the crime of robbery is technically described in this indictment, and that the prisoner at the bar is legally convicted of that offence.
    By a recent statute of this commonwealth,  the punishment of robbery has been mitigated, and for the pains of death, confinement to hard labor for life has been substituted ; and the offender liable to this punishment is thus described: — “ Any person who shall by force and violence, * or other assault, and [ * 243 ] putting in fear, feloniously steal, rob, and take from the person of another, any money or goods,” &c.
    This clause of the statute admits, perhaps, of some uncertainty in the construction. “ Putting in fear ” may be so connected with the preceding words, as to become an essential circumstance in describing the offence of robbery; as well when the assault is accompanied with actual force and violence, as when it is by a constructive force, as by menaces; and if putting in fear was essential in an indictment at the common law, the words of the statute are not sufficiently explicit to establish a construction, changing the definition of the crime or the form of the indictment in this respect.
    This point has been carefully examined. Sergeant Hawkins, 
       in defining the crime of robbery, seems to make the phtting in fear the circumstance which distinguishes the crime of robbery from any other larceny from the person ; and for this he cites Lord Coke and Lord Hale, who give the same definition. But in commenting upon the several parts of their definition, it is expressed by all of them, that without putting in fear, or violence, it is not robbery ; and that upon proof of violence the law implies fear, in odium, spoliatoris. Sergeant Hawkins also states, that no robbery is within the statute, by which the offence is made punishable with death without benefit of clergy, but such as is alleged in the indictment to have been committed in or near the highway, and to have put the person robbed in fear; and for this last dictum he cites Dyer’s reports (page 224.) The citation refers to a short note, which is to this effect: —“ that one was indicted, for that, with force and arms, at, &c., in the highway there, forty shillings in money he feloniously took from the person of J. S. And he had his clergy; for it is not robbery, unless the person be put in fear, as by assault and violence.”
    [ * 244 ] * Blackstone, 
       defines robbery “ the felonious and forcible taking from the person of another, of goods or money to any value, by violence, or putting him, in fear. And he observes that previous violence, or putting in fear, is the criterion that distinguishes robbery from other larcenies; and that it is not indeed necessary, though usual, to lay in the indictment that the robbery was committed by putting in fear ; it is sufficient, if laid to be done by violence.” This was the opinion of Justice Foster in delivering the opinion of the judges in the case of M’Daniel & Al.; 
       and was also the opinion of the twelve judges, as it is explicitly stated in Donnally’s case,  by Justice Wittes, in delivering their opinion, according to the report of that case in Leach. 
       And Baron Eyre, in his argument of the same case, as it is reported in East, 
       says that in the old precedents of indictments for robbery, the putting in fear is not alleged.
    
      
      
        Stat. 1804, c. 142, § 7.
    
    
      
       1 Hawk. P. C. c. 34.-3 Inst. 68. — 1 H.H. P. C. 531.
    
    
      
       4 Comm. 243.
    
    
      
      
        Fost. Rep. 128.
    
    
      
      
        Leach's C. L. 229
    
    
      
       Vide Com. Dig. tit. Justices C.
      
    
    
      
      
        East's Crown Law, c. 16, § 127, 130, 167.
    
   The result of this inquiry is, that we are not restrained by the common law definition of robbery, or by any precise form of the indictment, as to the circumstance in question; and without depart:ng from any established principle, the construction may be, what the words cited certainly admit, that a larceny committed with actual force and violence, or with a constructive force by any assault and putting in fear, is to be adjudged a robbery; and that in this respect the statute has preserved the definition of the crime, as it was described and punished by the common law  