
    
      People v. Glynn.
    
      (Supreme Court, General Term, First Department.
    
    November 7, 1889.)
    1. Robbery—What Constitutes—Pear.
    Under Pen. Code N. Y. § 324, providing that “robbery is the unlawful taking of" personal property from the person, or in the presence, of another, against his will, by means of force or violence, or fear of injury, immediate or future, ” fear is a possible, but not necessary, element of the crime; and where property is taken by force or violence, in ttie presence of the captain of a vessel, a verdict of guilty, on, trial for robbery, is warranted, notwithstanding evidence that the captain, when, commanded under cover of a pistol to go below deck, threw the robber overboard, whereupon his accomplice jumped into a row-boat along-side, and it drew away.
    3. Same—Forcible Takino.
    Though the property was taken without force or violence, yet where the evidence shows that it was in the boat, and carried from the presence of the captain by means of the force and violence used by its occupants, the crime is complete though the-captain was ignorant that the property was in the boat.
    Appeal from court of general sessions, New York county.
    Indictment against William Glynn for robbery in the first degree. Pen.. Code N. 1!. § 224, provides that “robbery is the unlawful taking of personal property from the person, or in the presence of another, against his will, by means of force or violence, or fear of injury, immediate or future, to his person, or property, ” etc. Verdict of guilty, and defendant appeals.
    Argued before Van Brunt, P. J., and Barrett and Daniels, JJ.
    
      Purdy ct- McLaughlin, (Ambrose H. Purdy, of counsel,) for appellant John R. Fellows, Dist. Atty., (McKenzie Semple, of counsel,) for the People
   Van Brunt, P. J.

The evidence in this case shows that one Hiram Spring-stead was in October, about the 17th, 1888, the captain of a trading schooner, which was lying at the foot of One Hundred and Ninth street, East river, in, this city. At midnight he, being in his cabin, heard a noise on deck. The-cabin doors had been been fastened with lashings on the inside. The captain shoved the door, but could not get out because of obstructions from the outside. A knife had been stuck through, and the inside lashings cut. The-captain then blew out the light,«*nrt went through the hold, and out on deck through the fore-peak hatch. ^>on getting upon the deck he saw the appellant standing aft by the cabin door: also another man on deck, and a man in. a row-boat along-side. The appellant pointed a pistol at the captain, and ordered him to go below, or he would blow his brains out, which injunction the-captain does not seem to have heeded, because he says: “I took my chances, and slugged him, and he fell overboard, and the other man jumped" into the-boat, and it went away. They then pegged the captain with stones and brickbats, so that he had to lay below the rail of the vessel to escape the missies. After they had rowed away the captain examined the boat, and missed the articles which were claimed to have been stolen. The point made upon this appeal is that the evidence was insufficient to warrant the verdict,-in that the-acts proved do not constitute robbery. The indictment charged that the appellant, with force and arms, took the articles in question in the presence of the captain, against his will, by means of putting the said captain in fear of some immediate injury to his person.

It is urged, first, that there is no proof whatever that any property was taker, in me presence of the captain, and that the evidence shows that the taking was not against his will, and that the property was not taken by putting the-captain in fear; and it is urged that the facts show that the captain not only was not put in fear, but that he put his assailants, among whom was the defendant, in that condition of mind. It seems to be assumed that under the-definition of “robbery,” as contained in the Penal Code, fear is a necessary ingredient of the crime. But, as we read the Code, fear is not a necessary element, but may be an element which goes to make up the crime. “Robbery”' is defined to be “the unlawful taking of personal property from the person, •or in the presence, of another, against his will, by means of force or violence.” Fear does not enter into this definition. It is only in the third definition where the element of fear is mentioned,— “or fear of injury, immediate •or future, to his person or property.” Therefore, if the property in question was taken in the presence of this captain by means of force or violence, whether ■it produces fear or not, the crime of robbery was made out.

It is urged that the taking was complete at the time that the captain discovered the presence of the appellant and his associates upon his boat, and "therefore nothing that was done afterwards could alter or change the nature of the offense. It s'eems to be clear that, although the thief may have procured possession of the property of another without force or violence, the removal of the property from the presence of that other, with force or violence, •constitutes robbery. It is not stated in the definition of “robbery” that the owner or person in whose presence the property is removed shall know of its removal at the time. 'The fact that it is removed from such presence by means of force or violence constitutes the crime. Suppose a man should set his carpet-bag upon the sidewalk for some reason, and, two persons confederating to rob him, one should make an assault upon him while the other took out some •of the contents of the bag, and shut it up so that it appeared to be in the same condition as before, and his assailants should then retreat, carrying the stolen property with them, the person robbed having no knowledge that his bag had been opened, and anything taken away, until after the thieves had entirely escaped, can there be any doubt but that the crime committed would be “robbery? ” The facts in the case at bar seem to be exactly like this. The thieves used force and violence in order to be able to carry off the property which they had secured. There was ample evidence from which the jury could find that the property in question was in the boat, and was carried from the presence of the captain by means of the force and violence used by the men in the boat. The mere fact that the captain did not know that it was in the boat in no way ■altered the effect of these facts, as knowledge of the fact of removal from the presence by the person from whose presence property is removed is not a nec•essary ingredient of the crime. The judgment appealed from should be affirmed. All concur.  