
    No. 270.
    The State of Louisiana vs. Tom Patterson.
    An indictment charging that the accused did wilfully and feloniously, by force and violence, rob, etc., is sufficient without the additional words “ against his will.”
    APPEAL from the First District Court, Parish of Caddo. Hieles, J.
    
    J. Henry Shepherd, District Attorney, for the State, Appellee:
    1. An exception to an entire charge which points out no specific errors, but asserts generally that it did not properly inform the jury of the law of the case, and that the charge is not law, is too vague to be considered by the Supreme Court.
    It is the duty of counsel to point out each erroneous instruction specifically,and bring it to the attention of the court, so the court can pass upon it. Thompson on Ohaiging the Jury, p. 157; State vs. Williams, 30 An. 842; State vs. Biculfi, 35 An. 774; State vs. Melton, 37 An. 77.
    2. The tendency of modern jurisprudence is to relax strict technical rules of the common law, and to look rather to substance than form, to ideas rather than words. State vs. Williams, 32 An. 335.
    3. In an indictment for robbery the phrase, putting in fear, is not essential. It is an alternative element in the offence, only essential where there is no allegation of force. Bishop 2, Or. P. 1005, see p. 474.
    “If force is used there need be no other fear than the law will imply from it. There need be no fear in fact. It is sometimes said that there must be either force or fear, not necessarily both. Where there is actual force the fear is conclusively inferred. Bishop, G. L. 2,1174, p. 660.
    Hence, an indictment charging force and violence would be sufficient for the introduction of evidence of force and violence and authorize a legal conviction.
    4. Bobbery is compound larceny — larceny aggravated by force. It is a larceny of a high grade; hence the allegations of an indictment for robbery should be similar, with the addition of the essential aggravating matter which elevates the offence to robbery. Mr. Bishop says: “Evidently in this part of the indictment what is adequate in larceny is also in robbery,” Or. P., Sec. 1006. Therefore, where an information contains all necessary averment to support a charge of robbery, the failure to charge the defendant with any conversion or intent to convert to his own, is not available as an objection in a motion in arrest. State vs. Darbin, 22 An. 162.
    As the words did wilfully and feloniously steal, take and carry away sufficiently imply the taking without the consent of the owner. State vs. DeSewart, 33 An. 979; State vs. Jones, 41 An. 784. By parity of reasoning, the words wilfully and feloniously, by force and violence, rob from the person, would negative the owner’s consent sufficiently to imply the taking without consent of the person robbed. M. U. B. 189 defines robbery.
    
      
      J. W. Jones for Defendant and Appellant:
    1 Robbery at common law, is the felonious and forcible taking of the property of another, from his person, or in his presence, against his will, by violence and by putting him in fear. Wharton’s Am. C. L., par. 1695.
    2. The essential substantive averments in a bill of indictment required by the common law are not dispensed with by the statute of 1855. 20 An. 145.
    3. The statute of 1855 was not intended to make a radical change in the system of criminal pleading, but to simplify it and correct some supposed deficiencies. 20 An. 147.
    4. When the statute has adopted a common law offence by fixing a penalty to it, without otherwise defining the crime, all the common law requirements must befollowed by the indictment. 20 An. 408 ; 9 An. 210.
    5. Whatever was essential to the description of the offence in an indictment at common law, is essential here. 33 An. 1292 ; 30 An. 814; 29 An. 601.
   The opinion of the court was delivered by

Watkins, J.

The indictment charges that the accused “ did wilfully and feloniously, by force and violence, rob from the person of Ered. Sims a watch worth $16,” etc.

Having been tried and convicted, his counsel filed a motion in arrest of judgment, on the ground that the indictment was defective and insufficient to support a conviction, because ‘ ‘ it does not charge him with robbing the said Sims of the watch and chain against his will."

The District Judge disallowed the motion, because he regarded as sufficient the averment of the indictment that the watch and chain were taken from the prosecutor “by force and violence." He says that while it is true that ‘ ‘ an indictment (for robbing) must state upon its face that the goods were taken against the will of the party assaulted, (yet) it seems (that) it may be good without the use of those specific words, if the words used convey the same meaning.”

It is well settled that an indictment for robbery must set out, in substance, all the elements of that crime as a common law offence.

Such an indictment should state the crime as having been committed feloniously, violently and against the will, or by putting the person in fear.

An essential element of larceny is stealth, and that of robbery is force. The latter may be physically ’applied to the person robbed, or goods may be extorted from Mm by the employment of intimidation or putting him in fear. But manifestly either physical violence or intimidation implies a restraint of volition, nothing else; and the addition of the phrase “ against his will” would have 'been an unnecessary tautology instead of a requisite element of description.

The use of force, or putting in fear, are terms to be employed in alternative only. The indictment must allege either force or putting in fear. 2 Bishop, Orim. PL, Sec. 1005.

We do not understand that a contrary doctrine is announced in State vs. Durbin, 20 An. 408, or in State vs. Cook, 20 An. 145. In the former it was said that “ in an indictment for robbery from the person, the words feloniously, violently and against the will are essential; and it is usual, though it seems to be unnecessary, to allege a putting in fear.” The words “violently and against the will” are not more expressive than are the words “by force and violence.”

In the latter case it was said that at common law the crime of robbery “ consists in the felonious and forcible taking from the person of another, or in his presence, against his will, of any chattel, money or valuable security, to any value, by violence or putting him in fear.”

That is, doubtless, a correct definition of the crime of robbery, but the opinion in that case does not state that this identical phraseology is essential to the validity of an indictment. On the contrary, it is apparent that the felonious and forcible taking of goods or property of another against his will is to be accomplished “ by violence or putting him in fear.” So that an averment in an indictment that the goods were taken by force and violence necessarily implies that they were taken against his will.

Our conclusion, therefó're, is that the indictment is not defective or insufficient.

Judgment affirmed.  