
    Commonwealth vs. Charles H. Ordway & another.
    Snatching a bank-hill from the owner’s hand, and thereby touching his hand, but with no intention of injuring or touching his person, is not an assault with force and violence under Eev. Sts. c. 125, § 16.
    tf this court are of opinion that a verdict of guilty cannot be sustained upon a case reported by the judge of the court of common pleas, under Eev. Sts. o. 138, § 12, the proper judgment is, that all further proceedings be stayed, and that the defendant be discharged and go without day.
    This was an indictment under Rev. Sts. c. 125, § 16, for an assault with force and violence upon one Eleazer B. Buzzell, with intent to steal from his person. At the trial in the court of common pleas before Mellen, J., it appeared that said Buzzell had in his hands two bank-bills for the purpose of putting up, on a bet made by the defendants with him, which bills the defendants suddenly snatched, and ran away. In taking the bills, one of the defendants touched the hand of the prosecutor, but without any force, and he did not think the defendants had any intention of injuring .or touching his person. The defendants were convicted, but the presiding judge, deeming the propriety of the conviction so doubtful a question of law, as to require the decision of the supreme ■judicial court, reported the case, at the defendants’ desire, in pursuance of Rev. Sts. c. 138, § 12, and all further proceedings in that court were stayed. jB. F. Butler, for the defendants.
    
      J. H. Clifford, (attorney-general,) for the commonwealth.
   By the Court.

The opinion of the court is, that the evidence does not bring the case within the Rev. Sts. c. 125, § 16; there being no intentional touching of the person amounting to an assault.

But a question arises, what judgment shall be rendered in a case thus brought up by a report of the judge pursuant to Rev. Sts. c. 138, § 12. Being of opinion that no verdict of conviction upon this indictment ought to be rendered upon the facts reported, the court are of opinion that by Rev. Sts. c. 138, § 14, the proper judgment is, and they do, therefore, order, that all further proceedings upon this verdict be stayed, and that the defendants be discharged and go without day. 
      
       This, and the following cases for this county, were decided at the October term, 1852, at which the Chief Justice, and Justices Metcalf, Bigelow, and Cushing, were present.
     