
    [Philadelphia,
    Thursday, January 16, 1812.]
    *The Commonwealth against Snelling.
    To constitute robbery, there must be a felonious talcing of property from the person of another by force, either actual, or constructive; but if force be used, it is not essential that the prosecutor should be either aware or afraid of the taking. Hence, where the prisoner took the prosecutor by the cravat, with an intention to steal his watch, and also pressed his breast against the prosecutor’s and held him against a wall, during which time he took the prosecutor’s watch from his fob, without his knowledge, and without his suspecting any intention of felony, this was held to be robbery.
    
    At an Oyer and Terminer held by the Chief Justice and Judge Braceenrid&e, the defendant was indicted of feloniously assaulting one David Harrod, putting him in bodily fear and danger of his life, and feloniously and violently stealing, taking and carrying away from his person, a silver watch of the value of ten dollars. The defendant pleaded not guilty, and upon the trial the jury found the following special verdict.
    “And now, &c., a jury being called, come to wit, &c., who. say, that David Harrod the prosecutor was met on the 16th day of December last in Plumb street, near to Fourth street, by the said prisoner. That they jostled together in the street. That the prosecutor then asked the prisoner’s pardon. The prisoner turned round and looked at the prosecutor, and said, you d—n black son of a b—h, what did you run against me for? That the prisoner then followed the prosecutor, till the prosecutor ran up against a house. That the prisoner then took the prosecutor by the cravat with his left hand, with an intention to steal his watch, and held him by the cravat till he left him. That the prisoner also pressed his breast upon the prosecutor’s, and after a little time left him. That the prosecutor was afraid at the time of this occurring that the prisoner would whip him, but had no idea that he meant to rob him. That while the prisoner had the prosecutor against the loall, he took the prosecutor’s watch stated in the indictment, from his fob, without the prosecutor’s knowledge at the time, and he did not know it till aftbr the prisoner had gone out of sight. But whether upon the whole matter the prisoner is guilty of robbery or larceny in manner and form as he stands in-indicted, or not guilty, the jury are ignorant, and pray the advice of the court. If in point of law the court should be of opinion that the prisoner is guilty of robbery, then they say that he is guilty of robbery in manner and form as he stands indicted. If the court should be of opinion that the prisoner is guilty of larceny, then they say that he is guilty of larceny in manner and form as he stands indicted; and if *the court should be of opinion that the prisoner is not guilty, then they find that he is not guilty.”
    
      T Sergeant for the commonwealth.
    The jury have found sufficient facts to establish the crime of robbery. They have found violence or force by the prisoner, in seizing the prosecutor by the cravat, and in pressing liim against the wall. They have found the felonius intention, and the fact of taking the watch from the person of the prosecutor without his consent, accompanied by force. These are all the necessary ingredients in the crime of robbery, which is the felonious taking of money or goods to any value from the person of another, or in his preseuce, and against his will, by fear or violence. 2 East’s Pleas Cr. 707. The gist of the offence is the fear or violence, but it is not necessary that they should concur; either will do, provided it appear that by one of these means the property was taken without or against the will of the party. 2 East 708, 709. The threat of a criminal accusation, if it excites terror, is equivalent to force. 2 East 714. Any threats indeed which would impose terror on a reasonable man’s mind, and would leave him not a free agent, but induce him to part with his money against his will are sufficient to constitute the offence, without the least show of personal violence. 2 East 717. Constructive violence supplies the place of actual violence. 2 East 723. So if force be used without exciting any fear, as if a man be knocked down and his property then taken, this is robbery. 2 East 725. Accordingly it is not necessary to allege the putting in fear in the indictment. Although the modern indictments run so, yet the ancient precedents do not state it, and it is now inserted only to make the description of the violence more complete, fear being of no consequence except as a species of constructive force. It is immaterial therefore that the special verdict states that the prosecutor had no idea and of course no fear of being robbed. There was the application of actual violence, by the bolding the cravat, and the pressing against the wall. Neither is it of importance that the prosecutor did not know when he was robbed ; for if the property be taken when the party is rendered senseless by the application of actual force, this it has been already seen *s a taking by force without, which is* the same as against, his consent. Now here the intention of the prosecutor was turned from the care of his property by the application of both actual and constructive force, pressing against the wall and the fear of being beaten ; and the taking under such circumstances was in truth a taking both by force and fear, and without his consent. Whatever the pretence may be, if the object is to steal from the person, and force is used, it is robbery.
    
      Montgomery and Kitlera for the defendant.
    There can be no robbery unless the taking is accompanied with actual or moral force, and is against the will of the party, where he has any will. The argument for the prosecution makes no distinction between taking with violence against the will of the party, and taking without his being conscious of it, at the same time that violence is committed against his person. But such a distinction runs through many of the cases upon this subject; and this Court will in a penal ease take the rule as they find it, without scrutinizing too nicely the reason of it. The taking itself must be forcible, and against the party’s will; that is, either it must be an act of force applied directly to the thing taken, or it must be the effect of force applied indirectly to the thing taken, through the party’s mind, and in neither case of course can the crime be committed if the property be taken secretly. The necessity of force is not questioned; it appears in 1 Hale H. P. C. 581; 1 Hawk. P. C. 233, and in all the authorities cited for the prosecution. But the character of this force is the difficulty, and it is to be collected only from the cases which have occurred in this branch of the law. The true definition of robbery, say the judges in Willan’s ease, is the feloniously taking from the person of another, property of any amount, with such a degree of force or terror, as to induce the party unwillingly to part with his property. 4 Bl. Comm. 244. Note. Force therefore which is accompanied with this effect upon the will, is the characteristic force of robbery. But if force be applied which does not excite any operation of the will as to the party’s property, then the crime wants an essential character of robbery. Hence, says Lord Coke, if the property be taken secreté, this circumstance makes the difference between a robber and a cutpurse. 3 Inst. 68. The party’s will has no ^operation. So if two or three find a person drunk, and declare he shall home, dragging, kicking, and using him ill, and at the same time clandestinely take his money, this is not robbery, because there was no demand of his money, nor any fear of losing his money, and therefore there was no operation of his will in relation to it. 1 Hawk. P. C. ch. 34, sec. 5. Bk. 1. note. So also if one puts a drunken man on his horse, takes him from a tavern, and then picks his pocket, this is not robbery. 2 East PI. Cr. 704. In all the books it is said the taking must be against the party’s will. 2 East 711, 713; Post. 128; 2 East 720. This is as much an ingredient as force itself. The only case which appears to oppose the principle, is that in which a person is knocked down and then robbed; but this is a fair exception, it being a case in which the party’s will is in fact destroyed by the robber. What distinguishes robbery from larceny, but this force operating upon the will? The degree of force is immaterial. A larceny may be committed with more force than is requisite to constitute robbery. It seems impossible to fix upon any circumstance but this effect of the force upon the will. In this case the special verdict states that the party did not know of the taking, although at the same time, he had the use of his mind. It finds that he was not in fear of the robbery, because he had no suspicion of it. It finds merely a fear of being whipped, which produced no effect upon his mind as to the property taken. Is there a case to be found in which the secret taking of property from the person of another having the use of his faculties, and accompanied with such force, has been held robbery ? The case from Hawkins is directly in point to the contrary.
    
      In reply it was said that the argument for the prisoner went to overthrow" a practical construction of the law by a subtlety. The only case to support it was the case in the note to Hawrkins, which was an imperfect case reported from the Old Bailey, and by it, it did not appear that the taking was at the time of the violence. Here actual violence was used ; a taking of the watch at the very time; and the want of the party’s consent. Not to denominate this robbery, is to suffer the law to be circumvented by fraud.
   *Txluhman O. J.

The question in this case is, whether the watch of David Harrod was taken from his person by force. It has been contended with considerable ingenuity, that the offence does not amount to robbery, because the watch was taken secretly without the knowledge of Harrod, and without his being in any fear of being robbed, although he wras in fear of being beaten. I will premise that in forming my judgment, I have felt myself less disposed to encourage subtle distinctions in favor of the prisoner, now that his life is not at stake, than I should have done if the crime of robbery had been punishable with death. Still however, in this as in every other criminal case, the greatest caution must be used not to stretch the principles of the law beyond their established limits. To constitute a robbery there must be a felonious taking of property from the person of another by force. This force may be either actual or constructive. Actual force is applied to the body, constructive is by threatening words or gestures, and operates on the mind. It is impossible, in any definition, to comprehend all cases which may arise. As the different cases are presented, the question will be whether they fall substantially within the principles of the definition. Accordingly it has been held that if the thief induces the party robbed to throw down his purse through fear, and then takes it up, it is a forcible taking from the person. In such case, the purse is not actually taken from the person, nor is there any force in the act of taking it up from the ground. But the law would be of little use if it could be evaded by artifices of this kind. So if a man is knocked down and rendered senseless, and in that situation his money is taken without his knowledge, it shall not avail the thief to say, that it was not taken against the consent of the man whom he had rendered incapable of exercising the faculty of volition. In the present case, the verdict does not expressly find whether the watch -was taken against Harrod’s consent or not, but it finds that he did not know of its being taken; it is certain therefore that it was without his consent. It is found also, that he was in fear not of being robbed but of being beaten. As the watch was not given up through fear, I do not think this part of the verdict material. But fear is not an essential ingredient of robbery; force is sufficient. Now it is expressly found, "'that the prisoner with an intention to steal the watch, (that is with a 'felonious intention) made use of force, seizing Harrod by the cravat with his left hand, and pressing him against the wall, and at the same time took his watch from his fob. It is clear that the prisoner’s violence was the cause of Harrod’s losing his watch. The fear of being beaten diverted his attention from his property, and this fear was produced by force, so that in truth the property was taken by force. The law is not to be evaded by fraudulent contrivances. Here was property taken with a felonious intent accompanied with force. If Harrod was insensible of the taking of his watch, it was because the prisoner had thrown him into fear, by threatening words and an attack on his person. If it was the prisoners intent to obtain the watch under cover of this violence, without the knowledge of the owner, it is to be construed a taking by violence. I think the cases decided on burglary are stronger than this. To constitute burglary, there must be a breaking of the house. Yet if the owner is induced by stratagem to open the house, (such as by crying fire, or pretending that the officers of justice are at the door, and demand admittance) and then the thieves rush in, it has been held to amount to a breaking. I am therefore of opinion, that upon the facts found by this verdict the prisoner is guilty of robbery.

Brackenbxdse J.

Where the law is sanguinary it will be softened in the application to the case. The criminal law of England is sanguinary, and hence it has been softened by the executive pardon, absolute or conditional, of transportation for death. It has been softened by ecclesiastical privilege, or benefit of clergy, extended to all who could read, though laymen, by humane construction of its extent. It has been softened by statute in some cases; and except in treason, by the construction of courts. And even in treason in some particulars, though exacerbated in others. But in homicide it has been considerably mitigated; as for instance, the old rule voluntas reputabitur pro facto, is confined to treason. But is by the verdict of juries, that the rigor of the law has been chiefly mitigated; for where the punishment is severe, it is impossible that humane judges will not be impressed by it, and still more that the popular mind, *from wlilch juries are selected will not have a predisposition to take the case out of the law by an acquittal. In measuring the case by the sentence, a sense of injustice arises; and even in the hands of a rigid judge, will oftentimes stand out against a conviction, where the punishment is beyond what the common mind must feel as inhuman and cruel. Hence it is, that were I on a bench in England, I might be disposed, in applying the law of burglary to a case, to exclude it, and to give a construction that would soften it into that of larceny only; and on the same principle, to reduce a case as in that before us, from robbery which is more penal, by statute excluded in cases from clergy, &c.,to simple larceny only. Were I in that country, where this law and construction of law prevail, I would confine the crime of robbery to a taking from the person openly, the person put in fear and surrendering his property under the impression of fear; not that I would think this a distinction of reason in the morality of the offence, or solid in a common case, but as not coming strictly within the definitions that have been given of the offence, and what the law calls an astutia to mitigate. For in fact the knocking down a man, and taking from him while insensible, and not knowing the object of the violence, is not distinguishable from the taking openly from him who under fear delivers his property, unless with a view to mitigate in applying the law by construction in a case not before adjudged. In our commonwealth under the amelioration of our code, there is not this reason or ground of consideration in our way, in applying the rules of construction, or settling rules which relate to the criminal code. It is humane, and stands in no need of softening in the administration of justice. The public feelings are not at war with it as disproportionate and cruel. I am therefore disposed in this case to be of opinion that it was a robbery, and comes under that denomination.

Judgment that the offence was robbery.  