owner, and put him to as much expense and trouble as possible to recover his property; wherefore he had driven the horses some five miles away and turned them loose on the plains. The court reviewed the decisions and concluded that profit to the thief is not essential to the crime of larceny (44). In another case one who killed a calf and threw it into a well to prevent the discovery of its identity as the one he had stolen from another and sold, was held guilty of larceny in taking it from the man to whom he had sold it (45).

SECTION 2. ROBBERY.

§ 139. Defined. Robbery, by the common law, is a felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence, or putting him in fear. It is held that if property is taken by either of these means, against the will of the party, such taking will be robbery. At common law, therefore, there was but one offense, and fear was held to be constructive violence. Whilst robbery is a species of larceny, and whilst felonious taking is an element common to both, yet the two offenses are widely different. The criterion which distinguishes robbery from larceny is the violence which precedes the taking. There can be no robbery without violence.

§ 140. The felonious taking. As robbery is an aggravated species of larceny, the same taking, intent, etc., which are essential to larceny are essential to robbery.

(44) State v. Slingerland, 19 Nev. 135.

(45) Stegall v. State, 32 Texas Cr. Rep. 100.

A taking by force under a claim of right is not robbery though the claim prove unfounded. The thing taken must be property which could be the subject of larceny. The same taking is essential to make out the offense, and the same carrying away; and the crime completed by doing these things is not excused by any subsequent abandonment. A robber handed back the purse to the owner saying that he might keep it if he would give the robber the contents. Though the robber was taken before the owner could hand over the contents, the crime was held to be complete (46). One who forcibly tore a ring from a woman's ear, and thus reduced it to his exclusive possession, was convicted of robbery though the ring caught in her hair an instant later and was lost by the felon (47). But one who made a man drop what he was carrying, and was arrested before he could pick it up was held not guilty of robbery, because he had not yet acquired possession (48).

§ 141. The force and fear. The force must be either an actual struggle for the possession of the property or such violence as does a personal injury to the victim. The case of the ear-ring above mentioned was robbery though the ring was seized by the robber without the knowledge of the victim and there was no struggle for the possession, for the violence was manifested in an injury to the person robbed, by tearing a slit in her ear. Where one designed to steal another's sword by stealth, but was caught in

the act, the owner grabbed it, and they struggled for it, this was held as robbery, for the taking was by force (49). But when the thief took a purse by stealth, was discovered just as he was getting away, and was seized, he was held not guilty of robbery though he escaped with the purse after a struggle; for the struggle was not for the purse but to secure the prisoner, and he could not be sure of escaping by dropping the purse (50). Likewise, the fear, in robbery by putting in fear, must accompany the taking not succeed it. Harman, being on horseback, desired Halfpenny to open a gap for him, and while he was so doing, Harman took the opportunity, unperceived, to pick his pocket of his purse. Halfpenny, turning round and seeing the purse in Harman's hand, demanded it of him, and Harman answered him, "Thou villain, if thou speakest but a word of thy purse, I will pluck thy house over thy ears and drive thee out of the country, as I did John Somers." And so he went away with his purse. On an indictment for robbery, the prisoner was held guilty of simple larceny only; the property being obtained by stealth, and not by violence or putting in fear (51).

§ 142. Robbery from the presence. The essence of robbery as an aggravated form of larceny consists in the violence done to the person. But it is not essential to this violence that the property should be taken from the person. This is illustrated by an old case. While the prosecutor was riding on horseback in the highway by the

prisoners, one of them asked him to change a half-crown; and when he took some coins from his pocket to make the change, one of them gently tapped him on the arm, which knocked the coins to the ground. He said he would not lose his money so, and was attempting to dismount to pick it up when they threatened to blow his brains out if he did; he was thus restrained by fear, and they picked up the coins and rode away. This was held clearly robbery (52). A later case will show what is within the presence. The prosecutor was in a smoke-house 45 feet back of his house in the evening, getting out rations for his men, when one of the defendants came to the door and said the first man who put his head out of the smokehouse would have it shot off. By looking through the cracks the prosecutor saw a man standing at the door with a gun in his hand. He made no attempt to come out till some time later; and then he could find no one about. When he went into the house he found that another of the defendants had been in and taken from under the bed a box containing money. This was held to be robbery from the presence by putting in fear (53).

SECTION 3. LARCENY FROM THE PERSON.

§ 143. In general. Robbery is a common law aggravated larceny; but there have been statutes passed making a distinct offense of another aggravated larceny, commonly known as pocket-picking. Without creating any new offense, these statutes have provided a severer pen

alty for thieves convicted of secret larceny from the person than is inflicted in cases of simple larceny. These statutes seem to have been induced by the prevalence of the practice, the ease with which the offense could be committed, the difficulty in adequately providing against it, the boldness of the act, the violation of the person accompanying it, and the danger of actual violence in case of discovery. If one is so bold as to go to sleep in a public place, as a car or park, and one takes anything from the coat on which he rests his head, or even plucks the buckles from his shoes, these offenses would seem not to be within these statutes. But the fact that the thief is caught in the act, so that there is no secrecy, does not prevent the statute applying.

SECTION 4. LARCENY FROM THE HOUSE.

§ 144. In general. Another form of aggravated larceny which has received the special attention of the legislatures consists of thefts from dwellings and storehouses under circumstances which do not amount to burglary. To bring a case within these statutes it is held that the building must be the house of another than the thief, for which reason the wife of the man of the house would not be guilty under the statutes in taking the property of another which was under the protection of the house, and the taking must have been of property under the protection of the building and not of such as was under the immediate eye of the owner. Shop-lifting is not larceny from the house, for it is the taking of property from under the eye and personal protection of the owner or his ser