
    Kit vs. The State.
    1. Robbery: The indictment charges that Kit made an assault upon Williams, and put him ' in fear of his life, and did take, steal and carry away unlawfully and feloniously, the money of said Williams. This charge was not sufficient, for it does not state that the money was taken from the person of the defendant and against his will, which is an essential averment in an indictment for robbery.
    2. In an indictment for felony, all the facts necessary to constitute the offence must be charged by express averment, and cannot be left to intendment.
    The indictment in this case is as follows:
    “The Grand Jurors for the State of Tennessee elected, em-panneled, sworn and charged to enquire for the body of the county of Rutherford, upon their oath present, that Kit, a slave, the property of one John Williams, late of said county, yeoman, on the 15th day of November, in the year eighteen hundred and fifty, with force and arms in the county aforesaid, in and upon one James Hutchinson, in the peace of God and our said state, then and there being unlawfully and feloniously, did make an assault, and him the said James Hutchinson, in bodily fear and danger of his life, then and there feloniously did put, and, one bank note, on a hank to the jurors unknown, of the denomination of ten dollars and of the value of ten dollars, one bank note of the denomination of three dollars, and of the value of three dollars, on a bank to the jurors unknown, two bank notes on a bank to the jurors unknown of the denomination of one dollar each, and of the value of one dollar each, silver coin of the value of one dollar and seventy cents, two shirts of the value of two dollars, one cap of the value of fifty cents, and one pocket handkerchief of the value of fifty cents, of the monies, goods and chattels of the said James Hutchinson, did, then and there unlawfully and feloniously take, steal and carry away contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.”
    The case was submitted to a jury in the Criminal Court of Rutherford county; Turner, judge, presiding. The defendant was found guilty, and the judgment was arrested.
    The State appealed.
    
      Attorney General, for the State.
    
      E. A. Keeble, for the defendant.
   Totten, J.

delivered the opinion of the court.

The prisoner, a slave, was convicted in the circuit court of Rutherford, of a robbery from the person’ of James Hutchinson. A motion in arrest of judgment was sustained, and the attorney for the State has appealed in error to this court.

The question is, therefore, on the indictment, and the objection made is, that it doés not aver that the goods were taken from the person of the prosecutor and against his will. The offence at common law is defined to be “a felonious taking of money or goods of any value from the person of another, or in his presence against his will, by violence or patting in fear.” 2 East. P. C. 707, Roscoe Cr. Ev. 733.

Now to constitute this offence, the goods must be taken from the person of the prosecutor or in his presence, and against his will. It is sufficient if taken in his presence, or where by intimidation “he is compelled to open his desk or to throw down his purse, and then the money is taken in his presence.” United States vs. Jones, 3 Wash. C. C. Rep. 209.

It is this personal violence or putting in fear that distinguishes the offence from other larcenies.

It may, indeed, be inferred from the averments contained in the indictment, that the goods were taken from the person of the prosecutor and against his will; but in criminal prosecutions, of the grade of felony at least, nothing that goes to the substance of the offence should be left to intendment, it should be directly averred.

The indictment omitting these material averments, necessary to define the offence, is, therefore, defective, and the judgment was properly arrested.

The judgment in arrest, will be affirmed.  