
    Commonwealth vs. Thomas Gallagher & another.
    An indictment on Rev. Sts. c. 125, § 13, which alleges that the defendant assaulted and robbed A., and, being armed with a dangerous weapon, did strike and wound him, is not proved, as to the wounding, by evidence that the defendant made a slight scratch on A.’s face, by rupturing the cuticle only, without separating the whole skin 5 nor as to the striking, by evidence that the defendant put his arms about A.'s neck, and threw him on the ground, and held him jammed down to the ground.
    An indictment was found against the defendants on § 13 of c 125 of the Rev. Sts., which is in these words: “ If any person shall assault another, and shall feloniously rob, steal and take from his person any money, or other property which may be the subject of larceny, such robber being armed with a dangerous weapon, with intent, if resisted, to kill or maim the person robbed, or if, being so armed, he shall wound or strike the person robbed, he shall suffer,” &c. The indictment alleged that Thomas Gallagher and John Burns, on the 24th of February 1842, with force and arms, at Tewksbury in the county of Middlesex, “ in and upon one Chauncy Cook feloniously did make an assault, and sundry bank bills, current,” &c. “ of the value of thirty dollars, of the moneys and property of him the said Cook, from the person and against the will of him the said Cook, then and there feloniously, and by force and violence, did rob, steal and carry away; and that they the said Thomas Gallagher and John Burns, at the time of committing the assault and robbery aforesaid, were then and there armed with a certain dangerous weapon, to wit, with a pistol, and being then and there so armed, as aforesaid, they the said Thomas Gallagher and John Burns him the said Cook then and there feloniously did actually strike and wound, and with force and violence did then and there feloniously throw him on the ground, against the peace,” &c.
    The defendants were tried in the court of common pleas, before Cummins, J., on the testimony of said Cook, which, so far as it related to the point now in question, was thus : “ I asked the robbers what they wanted, and they replied, that they wanted my money, and if I did not deliver it, they would blow me through ; and one of them drew a pistol, as I thought, and I turned and ran. They overtook me immediately, put their arms about my neck, and threw me on the ground. One of them held me jammed down to the ground, while the other opened my vest. I felt stiff, the next day. There was a slight scratch on my face, the next day. How it came there I do not know.”
    The counsel for the defendants objected, that there was no sufficient evidence of an actual striking and wounding, to support the allegations in the indictment. The judge overruled the objection ; but the question being, in his opinion, so important and doubtful, as to require the decision of the supreme judicial court, he reported the case, as above, pursuant to the Rev. Sts. c. 138, § 12.
    This case was decided at October term, 1842.
    
      B. F. Butler, for the defendants.
    Under the section of the statute on which this indictment is founded, the striking ano wounding must be with the dangerous weapon with which the robber is armed. In Bex v. Harris, 7 Car. & P. 446, the defendant was indicted on St. 9 Geo. IV. c. 31, § 12, which enacts that any one, who “ shall unlawfully stab, cut or wound any person, with intent to maim, disfigure or disable such person, &c. shall be guilty of felony.” The proof was, that the defendant bit off the end of the prosecutor’s nose. It was held that this was not a wounding, within that statute, which meant that the wounding should be inflicted with some instrument, and not by the hands or teeth.
    But in the present case, there was neither a wounding nor striking. To constitute a wound, legally or medically, the whole skin must be ruptured. Begina v. Smith, and Regina 
      
      v. M’Loughlin, 8 Car. & P. 173, 635. Rex v. Wood, 4 Car & P. 381. S. C. 1 Mood Cr. Cas. 278. To strike is “ to make a quick blow or thrust,” which is not done by putting one’s arms about another’s neck, throwing him down, and holding him jammed down.
    
      Austin, (Attorney General,) for the Commonwealth.
    The case of Commonwealth v. Martin, 17 Mass. 363, 364, shows that the striking need not be with the dangerous weapon. Striking with such weapon shows an intent to kill or maim. But it is not necessary to show such intent, in order to convict the defendants. Hence it is not necessary that there should have been a wounding of Cook, and it might be conceded that the evidence did not prove a wounding. But there was a wounding,. within the meaning of the statute. The English cases, cited for the defendants, were under statutes against stabbing and cutting. Where the word £ wound ’ or ‘ wounding ’ has been introduced, it is true that breaking a collar bone, or biting off the end of a finger or nose, has been held not to be a wounding under those statutes. Wounding is there connected with stabbing and cutting. But in Regina v. Smith, cited on the other side, Lord Denman and Mr. Justice Park held that where the skin was broken internally, though not externally, there was a wounding, within the meaning of St. 7 Wm. IV. & 1 Victoria. See also Rex v. Shadholt, 5 Car. & P. 504.
    The Rev. Sts. c. 125, <§> 13, make it as penal to strike without wounding, as to wound, if the party be armed with a dangerous weapon. And there was a striking, in this case, within the meaning which common sense would give to the word ‘ strike,’ and within the mischief which the statute was designed to meet
    
      Butler, in reply.
    As the indictment avers a striking and wounding, both must be proved. If the evidence shows a wounding and not a striking, or a striking and not a wounding, it cannot be known on which the jury found the defendants guilty; for they were instructed that both were proved.
   Shaw, C. J.

The prisoners were indicted for robbery, on the Rev Sts. c. 125, § 13, following the previous St. of 1818, c. 124, § 1. The indictment avers that the prisoners, at the time of the robbery, were armed with a dangerous weapon, and, being so armed, that they did actually strike and wound the person robbed. This offence, by the revised statutes, was made punishable with death; but by St. 1839, c. 127, imprisonment for life, in the state prison, is substituted. In all other respects, this provision of the revised statutes remains in force.

The question raised on this bill of exceptions is, whether the evidence therein set forth was sufficient to warrant the jury in finding an actual striking or wounding, so as to bring the case within this clause of the statute.

This evidence depends wholly upon the testimony of Cook, the person robbed, which, after a verdict of conviction, and for the purposes of this inquiry, must be considered as entitled to full credit.

The proof of being armed with a dangerous weapon, is un» quesuonaole ; the doubt is as to actual striking or wounding.

1. First, as to wounding. In many cases there is great difficulty in determining what constitutes a wound. It has been a subject of considerable discussion under some of the English statutes; but we shall not attempt to give a definition. The scratch on the face, even if it were given by the prisoners on that occasion, which is left wholly doubtful by the testimony, we are satisfied was not a wound, within the statute. At most it was a rupture of the cuticle, and not of the whole skin, and would not necessarily cause any blood to flow. Regina v. M'Loughlin, 8 Car. & P. 635. Rex v. Beckett, 1 M. & Rob. 526. Roscoe Crim. Ev. (2d Amer. ed.) 729.

2. And we are also satisfied that the evidence shows no blow stricken. The prisoners ran after the prosecutor, put their arms round his neck, and threw him on the ground; and one of them held him jammed down to the ground, whilst the other rifled his pocket. Here was force, undoubtedly, enough to do considerable violence to the man’s person, and to produce the feeling of stiffness, of which he complained on the next day. But if was not the particular violence which is expressed by the term “ striking,” which implies force, applied with an impetus; a blow. The pressing with their arms and throwing hiir down, and holding him down, were neither of them a blow. The words jammed down, in the way in which they are used, do not come up to the idea of striking; the terms are, that they held him jammed down to the ground; from which we understand that they held him down firmly, and pressed on him forcibly, so that he could not extricate himself. This evidence proves a very atrocious crime, and one which, under other provisions of the statute, must subject the offenders to a severe punishment. But the court are of opinion, that it does not prove a robbery, attended with the specific aggravation of being armed with a dangerous weapon, and actually wounding or striking the party robbsd

Verdict set aside, and a new trial granted  