
    State of Mississippi v. James Presley.
    [44 South., 827.]
    1. Criminal Law and Procedure. Robbery. Indictment. Putting in fear. Assault. Against the will.
    
    An indictment for robbery, charging that defendant unlawfully, feloniously and violently did rob and steal and take from prosecutor’s person designated personal property, is not demurrable for failure to charge in terms:—
    
      (a) That prosecutor was put in fear; or
    (5) That an assault was made on him; or
    (c) That the property was taken against his will.
    2. Same. Statutory crime. Language of statute. Synonymous words.
    
    The exact words of a statute defining an offense need not be used in an indictment under it; words tantamount to those of the statute are sufficient.
    From the circuit court of Tippah county.
    Hon. James B. Boothe, Judge.
    Presley, appellee, was indicted, tried and convicted of rob' bery. His motion in arrest of judgment, however, was sustained and a judgment rendered by the trial court discharging him from custody. From this judgment the State appealed to the supreme court.
    
      B. V. Fletcher, attorney-general, for appellant.
    The indictment is for robbery and was manifestly drawn under § 1361 of the Code which is the same as the common law definition of the offense. It charges that the defendant did unlawfully, feloniously, forcibly and violently rob and steal and take from the person of Knight certain property, etc.” Obviously under the statute as at common law there are two kinds of robbery: one from tbe person by tbe nse of violence and one by putting the person in fear. This is an indictment for the first form of robbery, and it is therefore not necessary and would indeed be improper to charge that- the person robbed was put in fear. The distinction is clearly observed in Smith v. State, 82 Miss., 793, where it is said, substantially, that an indictment must charge either that the property was taken from the person or that the assaulted party was put in fear. In this case it is plainly charged that the property was taken from the person. A charge of being put in fear was therefore clearly improper. If it be said that the words “ by violence to his person ” are omitted, the answer is that the indictment does allege that the deed was done “ feloniously, forcibly and violently.” This is equivalent to the statutory words. As well said in the recently decided Richberger case, 90 Miss. 806, the precise language used in a statute need not be employed if equivalent terms are used.
    Bishop states clearly that the violence need not be stated in so many words; that it' is not a technical word in the definition. 2 Bishop’s Crim. Proc., § 1004.
    See also, what this great authority says in § 1005 as to the allegation of putting in fear.
    While it is usual to charge an assault, yet this is not mentioned either in the statute or the common law definition of the offense and certainly the omission of this charge, in the absence of a demurrer, is not fatal.
    The indictment does in fact charge the larceny, and it is not necessary to state specifically that the taking was “ against the will.” 2 Bishop, Or. Proc., 1006.
    The indictment charges a crime and while it is in artificially drawn it is good after verdict, and the case should be remanded that sentence may be imposed as required by law.
    
      Spight & Spight, for appellee.
    There was no error in the action of the circuit judge in sustaining the motion in arxest of judgment. While it is true that the defendant could have successfully interposed a demurrer to the indictment, if the defects had been discovered before trial, yet he was not required to do so. This indictment is fatally defective in omitting to charge essential ingredients in the crime of robbery and notwithstanding the provisions of §§ 1413 and 1426, Code 1906, the objections are properly raised by motion in arrest of judgment after verdict. The objections here presented are not merely formal, but go to the very essence of the offense attempted to be charged. Section 1361, Code 1906, is the statutory definition of robbery and differs from the common law definition by the interpolation of the words “ by violence to his person or by putting such person in fear of immediate injury to his person.” The indictment does not conform to either the statutory or common law definition of robbery. In both it is necessary to allege that the taking of the property was against the will of the person alleged to have been robbed. The indictment in this case omits this allegation and contains no other words of similar import. In Smith v. State, 82 Miss., 793, Chief Justice Whiteield, in delivering the opinion of the court says: “ This is a statutory offense and the language of the statute should be strictly pursued.” It will not do to say that the words forcibly and violently in this indictment obviate the necessity of charging that it was against the will. If the person alleged to have been robbed had been asleep or. unconscious from drunkenness or other cause, property taken from his person with intent to steal must have been taken “ feloniously, forcibly and violently ” as charged in this indictment. Tet it cannot be said that this was done against the will of the person from whom the property was taken because he had no will. The offense in that case would have been larceny, not robbery. On the other hand the person from whom the property is alleged to have been taken might have been wide awake and thoroughly conscious, but the taking might have been on a dare or test of strength offered by the possessor of the property and although taken forcibly and violently it could not be said to have been taken against the will of the possessor. It may be said that the cases here put are extreme, but they serve abundantly to illustrate the importance of complying with the statutory definition. If for no other reason the omission of the words “ against his will 77 renders this indictment fatally defective and the motion in arrest of judgment was properly sustained. 12 Enc. of PI. & Pr., pp. 1217, 1218, 1227. Gooh v. State, 72 Miss., 517; Taylor v. State, 74 Miss., 544; Smith v. State, 82 Miss., 793; 24 Am. & Eng. Ency. Law (2d ed.), 1003, § 6.
    In the offense of robbery it is essential to charge an assault with felonious intent and a failure to do so is fatal. 18 Enc. of PI. & Pr., 1219, 1220, and notes. The indictment is not good for the crime of larceny because it fails to charge any asportation.
    The indictment is so fatally defective that no judgment could be properly rendered on a verdict of conviction and the motion in arrest was properly sustained.
    Argued orally by B. V. Fletcher, attorney-general, for appellant.
   Calhoon, J.,

delivered the opinion of the court.

The indictment for robbery is under Code 1906, § 1361. There was trial, conviction, and then a motion in arrest of judgment and for discharge. The grounds of the motion were because (1) the indictment is fatally defective, in that it does not charge an assault; (2) because it does not charge an intent to rob or'steal; (3) because it does not allege a larceny; (4) because it does not charge that the person robbed was “ put in fear’7; (5) because it does not charge that the taking was “ against the will. The court sustained this motion, and ordered the defendant discharged from further answering that indictment, but held him under his bond to answer another indictment if found by the grand jury.

In so far as it concerns the merits of this case, the language of the indictment is that the defendant “unlawfully, feloniously, forcibly, and violently did rob and steal and take from the person of William M. Knight certain personal property of said Knight, to-wit, one pistol, worth $10 and $2 in silver money of the United States currency, and all of the aggregation value of $12, contrary,” etc. Of course, it is not necessary that the person robbed should have been put in fear where the goods were taken from his person. Smith v. State, 82 Miss., 793; 35 South., 178. Taking the property from, and by violence to, the person is one thing under the statute, and putting the person in fear of injury is another.

The omission of the word “ assault ” is not fatal here, because the charge is of acts which are in fact an assault. An assault is a conclusion of law from acts done, and our statute on robbery does not make it necessary to aver it technically, nor did the common law.

The violence is sufficiently charged, if it were necessary, and according to 2 Bishop on Criminal Procedure, § 1004, an indictment without it may be good if the meaning is otherwise conveyed. The same authority in § 1005 distinctly says that “putting in fear” is essential only where there is no force; and so Mr. Bishop says in § 1006 that the term “ against his will ” is not essential. In the case before us we think the indictment charges a condition of things manifestly against the will of the party robbed. Technical law is good law under proper circumstances, but not where it shocks common sense. One cannot “ unlawfully, feloniously, forcibly, and violently ” rob and steal from the person of another, without its being against his will; and here it cannot be said that, though -that is an infallible argument that it was against the will, still it is not perfectly charged. Such a doctrine cannot be invoked where the terms of the statute are otherwise duly covered. The exact language of a statute need not be used, where what is tantamount is fully set out.

The ruling below in our opinion was incorrect, and we reverse it, and remand the case, with instructions to the court below to sentence the accused on the conviction under the indictment against him.  