375. Putting in Fear.

(a) In General.—If property is taken by putting the owner in fear, and thereby preventing resistance, there is constructive violence, provided the fear is reasonable, and, if the other ele ments of the offense exist, it is as much robbery as if actual violence were used.533 The putting in fear, however, must precede or accompany the act of taking, just as the force must do so when there is actual violence. If property is taken without violence or putting in fear, as by snatching, the fact that the owner is put in fear to prevent him from retaking it, or to escape, does not make the offense robbery.534 The property need not necessarily be taken as soon as the owner is put in fear. If the fear continues, a subsequent taking will be robbery, though a considerable time may have elapsed.535

(b) Sufficiency of Threat or Menace. It is not every threat or menace that will be sufficient to make a case of robbery, as distinguished from larceny. It must be of such a nature as to excite reasonable apprehension of danger, and to reasonably cause a man to surrender his property. The fear inspired in order to compel a man to surrender his property may be of injury either (1) to the person, or (2) to property, or (3) to. character or reputation.

536

1. All of the authorities agree that fear of death or great

533 2 East, P. C. 707; Hughes' Case, 1 Lewin, C. C. 301, Mikell's Cas. 833; Simon's Case, 2 East, P. C. 731; Rex v. Donnally, 1 Leach, C. C. 193; Houston v. Com., 87 Va. 257, 12 S. E. 385; Long v. State, 12 Ga. 293, 320; and cases hereafter cited.

534 Rex v. Harman, 2 East, P. C. 736, 2 Rolle, 154, Mikell's Cas. 832; Thomas v. State, 91 Ala. 34, 8 So. 753; Bonsall v. State, 35 Ind. 460. 535 Long v. State, 12 Ga. 293, 322.

536 See McCloskey v. People, 5 Park. Cr. R. (N. Y.) 299. In Long v. State, 12 Ga. 293, 321, it was said: "The rule is this: If the fact be attended with such circumstances of terror-such threatening, by word or gesture-as, in common experience, are likely to create an apprehension of danger, and induce a man to part with his property for the safety of his person, it is a case of robbery."

bodily harm, if reasonably entertained, is sufficient to make a taking of property delivered by reason thereof robbery.537

2. It is also agreed that fear of injury to property may be sufficient, as in the case of a threat to burn or tear down a house. 538

539

3. As a general rule, subject to one exception, fear of injury to character or reputation is not sufficient. If a man threatens to accuse another of an unnatural crime, sodomy, and thereby obtains property from him, the law regards it as robbery, because this offense is so loathsome that the fear of loss of character from such a charge, however unfounded it may be, is sufficient to reasonably induce a man to give up his property." It is equally robbery, in such a case, whether the party be innocent or guilty.540 This is the only exception to the rule that fear of loss of character is not sufficient to make out a case of robbery. To obtain property by threatening to accuse another of other crimes is punished by statute in some jurisdictions, but it is not robbery at common law, if no violence is used.541 Thus, it has been held that it is not robbery at common law to obtain money from a man by threatening to accuse him of forgery or of passing counterfeit money,542 or of violation of the internal revenue law, 542a or to obtain money from a woman by threaten

537 Rex v. Simons, East, P. C. 712, fear of rape. See Rex v. Blackham, 2 East, P. C. 711.

538 Rex v. Astley, 2 East, P. C. 729; Rex v. Simons, 2 East, P. C. 731; Rex v. Brown, 2 East, P. C. 731.

539 Rex v. Donnally, 1 Leach, C. C. 193, 2 East, P. C. 713; Rex v. Jones, 1 Leach, C. C. 139; Rex v. Hickman, 1 Leach, C. C. 278, 2 East, P. C. 728; Rex v. Gardner, 1 Car. & P. 479; Long v. State, 12 Ga. 293, 319; Thompson v. State, 61 Neb. 210, 85 N. W. 62, 87 Am. St. Rep. 453.

540 Rex v. Gardner, supra. And see Reg. v. Cracknell, 10 Cox, C. C. 408; Reg. v. Richards, 11 Cox, C. C. 43.

541 Rex v. Knewland, 2 Leach, C. C. 731, 2 East, P. C. 732; Britt v State, 7 Humph. (Tenn.) 45; Long v. State, 12 Ga. 293, 318.

542 Britt v. State, supra.

542a Jackson v. State, 118 Ga. 125, 44 S. E. 833.

ing to accuse her husband of indecent assault.543 It is otherwise, of course, if such threats are accompanied by violence.544

In no case is the mere threat of injury, whether to the person, or to property, or to character, sufficient to raise the offense to robbery, unless it in fact inspires fear of the injury, and is the cause of the property being surrendered.545

(c) Fear not Necessary if There is Actual Violence.-Some writers have defined robbery as a taking by violence from the person of another, putting him in fear, or as a taking by violence from the person of one put in fear,546 thus requiring both violence and putting in fear, and not violence or putting in fear. This, however, is wrong. If there is actual violence, it is immaterial whether the victim is put in fear or not.547 The victim of a robbery by actual violence need not know that his property is being taken.548 Thus, if a man is knocked down and robbed while he is insensible, it is robbery.5 549 So, as was stated

543 Rex. v. Edwards, 5 Car. & P. 518, 1 Mood. & R. 257, Mikell's Cas. 833.

544 Bussey v. State, 71 Ga. 100, 51 Am. Rep. 256; Long v. State, 12 Ga. 293, 318. Handcuffing a person after falsely arresting him would be sufficient violence. Rex v. Gascoigne, 1 Leach, C. C. 280, 2 East, P. C. 709.

545 Rex v. Fuller, Russ. & R. 408; Rex v. Reane, 2 Leach, C. C. 616, 2 East, P. C. 734; Rippetoe v. People, 172 Ill. 173, 50 N. E. 166.

Thus, if property is parted with on a threat to accuse one of an unnatural crime, but for the purpose of prosecuting, and not from fear of loss of character, the taking of the property is not robbery. Rex v. Fuller, supra; Rex v. Reane, supra. See ante, § 161.

546 3 Inst. 68; 1 Hale, P. C. 532; 1 Hawk. P. C. c. 34, p. 147; 2 Bish. New Crim. Law, § 1156. For the definitions of Hale and Hawkins, see ante, 370, note 505.

547 Fost. C. L. 128; Com. v. Humphries, 7 Mass. 242; State v. McCune, 5 R. I. 60, 70 Am. Dec. 176; Com. v. Snelling, 4 Binn. (Pa.) 379; McDaniel v. State, 8 Smedes & M. (Miss.) 401, 418. And see State v. Burke, 73 N. C. 83; Clary v. State, 33 Ark. 561; State v. Gorham, 55 N. H. 152; Houston v. Com., 87 Va. 257, 12 S. E. 385.

548 Com. v. Snelling, 4 Binn. (Pa.) 379.

549 See Rex v. Hawkins, 3 Car. & P. 392; State v. Burke, 73 N. C 83; Clary v. State, 33 Ark. 561, 564.

in a previous section,550 it is robbery to run against a man, or rudely push him about, for the purpose of diverting his attention and robbing him, and then take a purse from his pocket;5 .551 or to seize a man's watch suddenly, and take it by breaking the chain,552 or to take an earring from a lady's ear by tearing the ear, etc. 553 The fact that surprise aids the force is imma

terial.554

376. Consent of the Owner.

The property must be taken without the consent of the owner. This is necessary, not only because robbery includes larceny, and larceny cannot be committed when the owner consents to part with the property, but also because robbery, as has been shown, can only be committed by violence or by putting in fear. If a person, therefore, freely consents to the taking of his property, though he may consent solely for the purpose of prosecuting the taker, and the latter may not know of his consent, there is no robbery.555

377. Taking Need not be "Against the Will" of the Owner.

It has sometimes been said that the taking must be "against the will" of the owner, in order to constitute robbery.556 But this is not true. It is enough if the taking be without his consent, provided there is violence. If a man is rendered unconscious by a blow, he has no will, and yet it is clearly robbery to knock a man down for the purpose of robbing him, and then

550 Ante, § 374, and cases there cited.

551 Com. v. Snelling, 4 Binn. (Pa.) 379; Seymour v. State, 15 Ind. 288. 552 Rex v. Mason, Russ. & R. 419; State v. McCune, 5 R. I. 60, 70 Am. Dec. 176; State v. Broderick, 59 Mo. 318.

553 Rex v. Lapier, 1 Leach, C. C. 320, 2 East, P. C. 557, 708; Rex v. Moore, 1 Leach, C. C. 335.

554 State v. McCune, supra.

555 McDaniel's Case, Fost. C. L. 121, Beale's Cas. 152; Rex v. Fuller, Russ. & R. 408. And see Connor v. People, 18 Colo. 373, 33 Pac. 159.

556 2 East, P. C. 707; Rex v. McDaniel, Fost. C. L. 121, Beale's Cas. 152; U. S. v. Jones, 3 Wash. C. C. 209, Fed. Cas. No. 15,494.

take property from him while he is insensible.557 So, as we have seen, it is robbery to take property by surprise, if there is actual violence.558

378. The Felonious Intent.

To take

The felonious intent to steal, or animus furandi, is just as necessary to constitute robbery as it is to constitute larceny. The robber must have a fraudulent intent, and must intend to deprive the owner permanently of his property.559 property, therefore, under a bona fide claim of right, however unfounded, as under a claim of ownership, or in a bona fide attempt to enforce payment of a debt,-is not robbery, though the taking may be accompanied by violence or putting in fear.560 Nor is it robbery to take property by violence or putting in fear, if the intent is merely to use it temporarily, and then return it.561 The felonious intent to steal must exist at the time the property is taken. If property is taken without any felonious intent, such an intent formed and carried out aft

557 1 Whart. Crim. Law, §§ 850, 855; Fost. C. L. 128; Rex v. Hawkins, 3 Car. & P. 392. And see State v. Burke, 73 N. C. 83; Clary v. State, 33 Ark. 561, 564.

558 Ante, § 374.

559 Rex v. Hall, 3 Car. & P. 409, Beale's Cas. 281; Reg. v. Hemmings, 4 Fost. & F. 50; Jordan v. Com., 25 Grat. (Va.) 943; State v. Hollyway, 41 Iowa, 200, 202, 20 Am. Rep. 586; State v. Sowls, Phil. (N. C.) 151; Com. v. White, 133 Pa. 182, 19 Atl. 350, 19 Am. St. Rep. 628; Hammond v. State, 3 Cold. (Tenn.) 129.

In the case of an assault, the original intent need not have been to rob. Thus, where a man assaulted a woman with intent to rape her, and, during the attempt to rape, took money which she offered him, it was held that he was guilty of robbery. Rex v. Blackham, 2 East, P. C. 711.

560 Rex v. Hall, 3 Car. & P. 409, Beale's Cas. 281; Brown v. State, 28 Ark. 126; People v. Hall, 6 Park. Cr. R. (N. Y.) 642; Long v. State, 12 Ga. 293, 320; Crawford v. State, 90 Ga. 701, 17 S. E. 628, 35 Am. St. Rep. 242; State v. Deal, 64 N. C. 270; People v. Hughes, 11 Utah, 100, 39 Pac. 492.

561 Ante, § 328.