
    Hanson v. The State.
    
      Criminal law — Robbery—Violence concomitant with the taking — Conviction of lesser degree of crime — Arraignment, necessity for.
    
    1. The violence which is essential to the crime of robbery must be concomittant with the taking of the property from the person of another.
    2. On the trial of a person indicted for the crime of assault with intent to rob, it is error to refuse to charge that violence, in order to constitute the crime, must not be subsequent to the attempt to take the property.
    3. Such, indictment will support a conviction for assault and battery, and it is error to refuse to so charge. Howard v. The State, 25 Ohio St. 399.
    4. The record of a conviction for crime must show that the defendant was arraigned on the indictment.
    Error to the Court of Common Pleas of Greene county.
    The plaintiff in error was indicted, tried, and convicted of the crime of assault with intent to rob, at the January term, 1885, of the court of common pleas of Greene county. The testimony on the trial tended to show that the alleged crime was committed in attempting to detach aüd remove a diamond shirt-stud from the person of the prosecuting witness, who was, at the time of the assault, standing in a crowd, and, feeling a sudden jerk at his shirt bosom, reached out his hand and caught the plaintiff in error, who struggled to release himself from the grasp of the witness. The shirt was torn by the jerk, hut the stud was not detached.
    
      T. JE. Wright and M. R. Snodgrass, for plaintiff in error.
    1. The court had no power or jurisdiction to proceed upon the trial without an arraignment of the accused. Rev. Stats., sec. 7257; Goodin v. The State, 16 Ohio St. 346; Doyle v. The State, 17 Ohio, 225; Williams v. The State, 12 Ohio St. 622.
    2. The violence must not be subsequent to the attempt to take the property. Shinn v. The State, 64 Ind. 13 ; 2 Arch. Cr. Prac. 1290; 1 Hale P. C. 534; 2 East P. C. 726.
    3. Under the indictment charging the plaintiff with assault with intent to rob, the jury might properly find him guilty of assault and battery, should the evidence warrant it. Howard v. The State, 25 Ohio St. 401; Heller v. The State, 23 Ohio St. 582 ; 1 Arch. Cr. Prac. 1311; Stewart v. The State, 5 Ohio, 241; Breese v. The State, 12 Ohio St. 146; Whar. Cr. Law, secs. 1678, 1679, 1681, 1682.
    4. To constitute the crime of “ assault with intent to rob,” where there is no “ putting in fear,” the element of violence must exist. If the evidence show that the offender intended to remove the shirt-stud by stealth, and by the use of that degree of force only that is generally needed to detach personal property from clothing, he can not be convicted of the crime of assault with intent to rob Brennon v. The State, 25 Ind. 403; Rex v. Moore, 1 Leach, 335; Long v. The State, 12 Ga. 293; 3 Green. Ev., see. 229; Roscoe Cr. Ev. 901; McCloskey v. People, 5 Park. Cr. Cas. 299; State v. McCune, 5 R. I. 60 ; Commonwealth v. Ordway, 12 Cush. 270; Bonsall v. The State, 35 Ind. 460; 2 Whar. Cr, Law, sec. 1701.
    
      James Lawrence, attorney-general, for the state.
    The evidence shows that Hanson used sufficient violence, in attempting to take the property, to constitute the crime of robbery, if he had succeeded in his attempt.
    It is true that the mere snatching of a thing is not considered a taking by force, but if there be a struggle to keep it or any violence, the taking is robbery. The violence need not necessarily precede, but may accompany the taking, and the force which is sufficient to take the property against the owner’s will is all that is required. 2 Whar. Cr. Law (7 ed.) 1701; Roscoe Cr. Ev. 913; 2 Bish. Cr. L. (6 ed.) 1167; Long v. The State, 12 Ga. 293, 320; Mahoney v. People, 5 Th. & C. (N. Y.) 329; State v. Broderick, 59 Mo. 318; Lapier’s case, 2 East P. C. 57, 708 ; Mason’s ease, Russ. & Ry. 419 ; Moore’s case, 1 Leach, 335 ; State v. McCune, 5 R. I. 60.
    The offense is complete if there was an intent by force and violence to take the stud from the person of the prosecuting witness, accompanied hy some act or movement toward its accomplishment, which constitutes an assault See Fox v. The State, 34 Ohio St. 377, 379.
    If overt acts be shown tending toward the commission of the crime, the intent will be presumed.
   McIlvaine, C. J.

Several errors are assigned, but we think it unnecessary to notice any other than those relating to the refusal of the court to charge the jury as requested by defendant below.

The court refused to charge “ that violence, in order to constitute ah assault with intent to rob, must not be subsequent to the attempt to take the property.” This request should have been, given. There being no putting in fear, violence is an essential ingredient in the crime of robbery. We find nothing in the charge as given which can be considered as a fair equivalent for the request. The testimony tended to show that after the taking of the property had been abandoned by the defendant, a struggle to avoid an arrest ensued. However violent this struggle, it did not characterize the attempt to take the diamond stud. The jury should have been plainly told that the charge of assault with intent to rob by violence was not proved by subsequent violence used to avoid an arrest.

The court also refused to charge, “that if the jury find that the defendant had not used such force and violence as makes him guilty of assault with intent to rob, he may be found guilty of assault and battery.”

If the jury, contrary to law, had been instructed that a conviction of the defendant for assault and battery only could not be had under that indictment, his danger of a conviction for the higher crime named in the indictment would, no doubt, have been increased. Howard v. The State, 25 Ohio St. 399; Heller v. The State, 23 Ohio St. 582.

True, the court had told the jury in the general charge “that if it was only an attempt to commit larceny of the property from the person by snatching the pin, then there would be no crime except assault and battery.” And again, the court had said to the jury: “Counsel for defendant suggests that the defendant may have simply intended to unfasten the pin, and then steal it without letting Miller (the prosecuting witness) know what he was doing. If this were so, I instruct the jury that the defendant would not be guilty of any thing beyond an assault and battery.”

It was probably the intention of the court that the jury should understand that a conviction of the less offense might be had in the pending action; but it was not so stated, and it may be that the refusal to charge as requested misled the jury, especially as no reason for the refusal was given.

The record before us does not show that the defendant was arraigned on the indictment before trial. The record is defective in this particular.

Judgment reversed.  