
    MICHAEL MAHONEY, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.*
    
      Bobbery in the first degree—what degree of violence necessary to constitute—bill of exceptions—what evidence not presented, by.
    
    Upon the trial of the plaintiff in error for robbery in the first degree, the complainant described the alleged robbery not only by words, but by acts, exhibiting to the jury the manner and mode of its commission. The judge charged that the evidence-of the complainant was sufficient, if believed by the jury, to justify the conviction of the prisoner. Upon a writ of error, held that, as the bill of exceptions did not presentía portion of the evidence, viz., the acts
    * This case was decided at the October Term, but the opinion was not filed with the clerk until December eleventh, too late to admit of its publication with the other cases decided at that Term.—[Rep. exhibited to the jury, the court must assume that such evidence was sufficient to authorize the charge.
    As the complainant was entering a horse-car in the city of New York, an accomplice of the prisoner crowded him against the door, whilst the prisoner threw his arms around the complainant’s neck, pulled him toward him, and removed a wallet from his pocket. Held, that the prisoner was properly convicted of robbery in the first degree.
    Writ of error to the Court of General Sessions, to review the ' conviction of the plaintiff in error of robbery in the first degree. The facts are stated in the opinion.
    
      John 0. Mott, for the plaintiff in error.
    
      Benjamin K. Phelps, for the defendants in error.
   Westbrook, J.:

On the 5th day of April, 1873, upon a somewhat rainy night, about the hour of ten and a half, one Peter B. Corson, who was on his way to his residence at No. 319 East Twentieth street, in the city of New York, from Barnum’s Museum, having hold of bis boy with one hand, and a umbrella in the other, was immediately, on stepping upon the platform of a Third Avenue car, robbed of his pocket-book and contents by the prisoner.

The questions which the counsel for the plaintiff in error presents are, was the crime committed that of which he was found guilty, to wit: Bobbery in the first degree, or was it simply larceny from the person ? The prisoner’s counsel upon the trial conceded “ that his client was guilty of the grand larceny, in having feloniously taken the complainant’s property from his possession, “but insisted” that it was unaccompanied by violence, within the meaning and comprehension of the statute.”

The recorder, after reading to the jury our statute which defines the crime of robbery in the first degree, left to them the question of the truth of the story of the complainant, and then added: “If you believe his statement in reference to the occurrence to be true, I charge you that the force used by the prisoner is that character of violence comprehended by the statute. The statute does not define the character or characters of the force or injury that must be used to constitute one of the elements of robbery in the first degree; it nowhere says that a person shall be knocked down and beaten senseless before the assailant can come within its comprehension ; but I charge you, if you believe Mr. Corson’s statement to be true, that the prisoner put his arm around his neck and violently and forcibly then and there jerked his head back, in the manner he described that he did, and forcibly and feloniously took from his person his pocketbook and money, that it was a robbery with felonious intent, and accompanied by violence.”

Various exceptions taken by the prisoner’s counsel to his charge, present this question: Conceding the truth of Mr. Corson’s evidence, is the prisoner guilty of the crime whereof he stands convicted ?

The narration of the occurrence by the complainant is as follows: “ I stepped on and made an effort to get into the car; there was a very large man stood right in the front door of the car, holding me back; that man (the prisoner) came and put his arm around my neck; pulled upon me; pulled up my head so [showing], and I had this arm — my left arm — kind of up, and then he pulled me two or three times ; said I, ‘what are 'you doing?’ he said, ‘I want to get that lady in ; ’ I saw no lady; well, perhaps, in less than one-tenth part of the time I have been stating it, he stepped off; I felt his hand come out of my pocket. Q. (By the court): What did he do to your neck, put your head up ? A. Tes, sir; and pulled back with his left arm. Q. (By the assistant district attorney): Where did he stand then, behind you ? A. He stood rather in front of me; that way [showing] ; I stood this way; he stood in front of me, reaching around; the other man .stood here, crowding me against the door.” The witness then described the contents of his pocketbook, and said that he felt for and missed it as soon as the prisoner withdrew his hand. On his cross-examination, the witness further testified: “ Q. How did he put his arm around your neck; was he pushing you one side ? A. ISTo; he was pulling me to him. Q. Where was he; in what position of the car; was he next to the driver, or where? A. He was just outside; on the edge like that, you know; I stood right here; he reached in and got his hand around my neck, and pulled me to him; pulling me out; pulling up in the front; up so, you know; I stood here. Q. You asked him what he was doing ? A. Yes, sir. Q. Hid he hurt you ? A. He did not hurt me particularly; he gave me a pretty good jerk.”

The foregoing is all the evidence given upon the trial, showing the violence used;. and our statute governing the case is as follows: “ Every person who shall be convicted of feloniously taking the personal property of another from his person, or in his presence, and against his will, by violence to his person, or by putting such person in fear of some immediate injury to his person, shall be adjudged guilty of robbery in the first degree.”

In discussing the point made by the prisoner’s counsel, that the recorder erred in instructing the jury that if they believed the truth of the evidence of the complainant, hereinbefore detailed, then the prisoner was guilty of the offense defined in the statute just quoted, it is apparent that 'it is liable to the fatal objection that the error does not affirmatively appear, because the bill of exceptions is so drawn as not to show to this court all the evidence of violence upon which the court and jury acted. It is an elementary principle, that, in the absence of all -the evidence given upon the trial, the appellate court will assume, when the question is upon the sufficiency of the evidence, that that which is not returned to it, warranted the ruling, and justified the verdict. Upon the trial of the indictment, not only did the complainant undertake to describe the alleged robbery by words, but by acts; he exhibiting to the jury, by physical action, the mode and manner thereof. That description which the court and jury by and before which the prisoner was tried, saw, and from seeing which a correct idea of the force and violence used in perpetrating the theft, can alone be formed, this court cannot see, and because it cannot, it is unable to say, and cannot say, that the recorder erred in his charge. On the contrary, upon the well-known rule to which we have alluded, that the tribunal whose proceeding is reviewed is presumed to have decided rightly, unless the error affirmatively appears, this court must assume that the representation by action of the force used in the perpetration of the crime, and which it is impossible for us to learn from the bill of exceptions, sufficiently proved to it that the prisoner used violence enough to bring him-within the statute. For this reason alone, the conviction should be affirmed.

But it also seems to "us that the violence which the words proved, was sufficient to prove the charge The amount and degree of violence which the accused must exert to bring him within the statute defining robbery, are not declared, and they manifestly could not be. The gravamen of the crime consists in taking “ the personal property of another from his person, or in his presence, and against his will, hy violence to his person, or by putting such person in fear of some immediate injury to his person.” In other words, the violence to the person, or the fear of immediate injury to the person, which, against the owners will, is sufficient to take his property, will, if the taking be felonious, render the taker amenable to the statute. It is not the extent and degree of force which make the crime, but the success thereof. In short, the force which is sufficient to take the property against the owner’s will, is all that the statutes contemplates; the distinction between robbery and larceny consists in this: In the latter, the act “ is accomplished secretly, or by surprise or fraud, while in the former the felonious taking must be accompanied by circumstances of violence, threats, or terror to the person despoiled.”

In the case before us, the accomplice of the prisoner crowds the complainant against the door of the car, whilst the accused throws his arms around the prosecutor’s neck, pulls him toward him, and then rifles his pocket. If this statement be true, it amply justified the charge; for, whether the force gave pain or not, it accomplished the theft, and by it, and it alone, Mr. Corson was feloniously deprived of his property against his will, though conscious of the act, and trying to prevent it.

The books contain many cases of convictions of the crime of robbery, where the force employed was evidently no greater than in this. With the citation of one very similar, we end the discussion. In Commonwealth v. Snelling, a special verdict found that 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 he took the prosecutor’s watch from his fob without his knowing it, and that the prosecutor had no idea that he meant to rob him; but was afraid that he meant to whip him. This was held to' be robbery.” The principle which the case just cited determines, is this:. That when force is employed to divert the owner’s attention, whilst he is unconsciously deprived of his property, the taker is guilty of robbery, though, by means of the force which distracts the attention, the larceny is artfully and unknown to the owner completed.

This is sound sense and good law. The force strategically employed so as to deceive an opposing commander as to the real object, whilst the latter is stealthily but successfully pursued, is that which wins the battle, though employed by indirection to accomplish the result. And the force which a thief uses to and upon the person of his victim, to consummate a robbery, if successful, is as much the successful force which robs when exerted to bewilder and confuse, as when used and exerted directly upon the main object. In either, the taking would be the result of force, though in one case indirectly applied, and in the other directly.

In the case before us, the most that could be said in favor of the prisoner, is, that his confederate and he used force to distract Mr. Corson’s attention whilst his pocket was picked. Unlike the Pennsylvania case, however, the hand which grasped the pocket-book was felt, and the theft discovered. The force, however, was in both cases, to give the most favorable construction to the prisoner of the evidence, used for the same purpose, and if thus employed in the one case it was robbery, it was equally so in the other.

The result of our examination is, that the conviction and judgment in this ease must be affirmed.

Davis, P. J., concurred.

Judgment and conviction affirmed. 
      
       2 R. S., p. 697, § 55 (Eds. ed.).
     
      
       East’s Pleas of the Crown, 559.
     
      
       4 Binney, 379.
     
      
       Cited from 2 Wharton’s Criminal Law (7th ed.), § 1701.
     