Long v. State , 12 Ga. 293 ( 1852 )

By the Court.

Nisbet, J.

delivering the opinion.

[1.] The motion to arrest the judgment, first demands attention, in the consideration of this cause. The ground of the motion, is that the indictment charges two separate and distinct offences jn one and the same count, to wit: robbery by force, and robbery by intimidation. It contains but one count, and in that the defendants are thus charged: “For that the said Jesse T. Dishough and others, (naming them,) on the ninth day of October, 1850, with force and arms, in the County aforesaid, in and upon one George Braswell, in the peace of God and said Stale, then and there being, wrongfully, fraudulently, feloniously, and violently, did make an assault, and him the said George Braswell, in great bodily fear and danger of his life, personal liberty and reputation, then and there by force and intimidation, did feloniously put, and one negro girl, named Lucy, of the value of seven hundred dollars; one set of blacksmith’s tools, of the value of ten dollars; one two-horse wagon, of the value of fifteen dollars; and five barrels of corn, of the value of sixteen dollars; and one bill of sale of the said negro girl, Lucy, of the value of seven hundred dollars; of the goods and chattels of the said George Braswell, and from the person of said George Braswell, by force and intimidation, wrongfully, fraudulently, feloniously and violently, and without the consent of the said George Braswell, did take and carry away, with intent to steal the same,” &c.

[2.] There can be no doubt but that it was the purpose of the pleader to charge the defendants in this count, with robbery by force, and also by intimidation. The objection is, that our Penal Code makes two separate offences, to wit: robbery by force, wad robbery by intimidation; and that these two offences being charged in one count, the indictment on that account, is fatally bad ; and if so, no judgment can be pronounced upon it. If the Code creates the two offences, as claimed, then the judgment ought to be arrested; because there is no doubt of the rule that two distinct offences cannot be joined in the same conn'. Docs the Code make two offences ? We think not; but 'creates one offence', to wit: robbery, ■ and makes two grades of that offence. One, robbery by force, which is the highest grade, and punishable with die longest term of imprisonment, in the penitentiary; and the other, robbery by intimidation, which is the lower grade, and punished with a shorter term of imprisonment. It defines robbery thus : “ robbery is the wrongful, fraudulent and violent taking of money, goods, or chattels, from the person of another, by force or intimidation, without the consent of the owner.” Prince, 678. The offence is single ; and it is robbery, if committed by force, and not the less robbery when perpetrated by intimidation. Force is the ruling element in the offence. When the Code speaks of force, it means actual violence ; and when it speaks of intimidation, it still means force; not actual and direct, but exerted upon the person robbed, by operating upon his fears — the fear of injury to bis person, or property, or character. The law considers, however, that actual violence is attended with more immediate and^ serious consequences than violence by intimidation ; and therefore it is, that a distinction is made in the punishment. The former constitutes the offence with greater enormity. The offence, I conclude, is single, for the reason stated, that the element offorce is necessary to constitute it in either case. It was so considered at Common Law. The Common Law definition of robbery, does not vary in substance from that of our Code, and it is exactly the same in reference to the alternative character of the offence. 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.” 2 East. P. of the C. ph. 16, §124, p. 707. 4 Block. C. 243. 1 Russell on Crimes, 867. The alternative mode of committing the offence is violence or putting in fear. These words are synonimous with force or intimidation in the Code. At Common Law, 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 offence, and fear was held to he .constructive violence. 2 East. P. C. ch. 16, §127. Fast. 128. Lomially’s Case, 1 Leach, 196, 197. Ream’s Case, 2 Leach, 619. 1 Russell on Crimes, 874.

In the particular in which I am now regarding robbery, that is, in reference to the singleness of the offence, I do not doubt but that the Code is declaratory of the Common Law, and its true meaning is legitimately ascertained by resort to the Common Law. The prescription of two punishments does not necessarily imply two offences. A sufficient reason for that, is found in the greater and less enormity of the offence, when committed in the one way or the other. Nor is it uncommon at Common Law, or under our Code, to find different grades of one and the same offence. Upon this idea that there was but one offence, an indictment at Common Law, which contained the alternative modes of committing robbery by violence, and by putting in fear, in different counts, was a good indictment. We have held that different grades of the same offence may be charged in the same indictment, in separate counts, and that upon such an indictment it is competent jor the Jury to find the defendant guilty of the higher or the lower grade, and that the Court will inflict the punishment according to the finding; and farther that a general verdict of guilty carries with it punishment for the highest grade; and punishment for the lower grade will be indicted only, where they find the defendant guilty of that grade expressly. 10 Geo. R. 47. 11 Geo. R. 92.

[3.] It remains to inquire whether different grades of the same offence'can be charged in the same count. At Common Law, we are free to admit, that it cannot be done. Under our Statute, we think it can be done. Under our Statute, an indictment is good, which charges the offence in the language of the Code, or so plainly that the Jury may easily understand the nature of the offence. We say, as we have before said, that if an offence is described as this Act requires it to be done, it is as to the description, a good indictment, no matter what it wants, when judged by the Common Law rules of pleading. For this, but a single reason need be given, and that is, that the Legislature has said, in so many words, that it shall be sufficient. We do not believe that the Legislature meant to say, that if the rules of the Common Law are complied with, as to forms of pleading, then a description of the offence, as they have laid it down, will be sufficient. They meant clearly to dispense with and repeal the forms of the Common Law, in the descriptions of offences, and to make sufficient any indictment, irrespective of counts or other formalities, which charges the offence in either of the modes which they have prescribed. If an indictment is good, which charges different grades of an offence in separate counts, then it may be well put to reason or to professional learning, why is it not good when the different grades are charged in one and the same count, when in that one count, they are as distinctly charged as they are or could be in separate counts ? We hold then, that different grades of the same offence maybe charged in one count, provided in that count, the offence is described in the language of the Code, or so plainly that the Jury may easily understand the nature of the offence. If this is not done, the pleading is bad. Where the offence, as in this case, may be committed in more ways than one, the judgment must set forth the different modes. That is plainly done in this indictment. The offence is charged in the language of the Code, and it is charged to have been done by force and by intimidation, so plainly that it would seem to be impossible for the Jury not to understand the nature of it. They cannot be presumed to be in any difficulty about applying the testimony; the more especially, as it is the duty of the Court (which duty it is presumed he will discharge,) to instruct them as to their right to find the one grade or the other, and as to the form of their verdict. Nor has the defendant any cause to complain, that he is not notified of the crime which he is to defend against. He is charged with the one offence, to wit, robbery ; and he is charged with committing it in both the modes in which it may be committed. He must at his peril, be prepared to meet the offence, whether committed in the one way or the other. The argument relied upon mainly to overthrow all this reasoning, is that the finding of the Jury being general, the Court will not know of what grade the defendant is guilty ; and therefore, cannot make any discrimination in the punishment. To which I reply: If the finding is general, he is guilty of the highest grade charged in the indictment. The law will apply the verdict to that part of the indictment which charges the offence in the mode to which the highest penalty attaches. Upon that he will be sentenced — upon that the judgment will be based. If found guilty of the lower grade, then the verdict applies to that part of the indictment which is descriptive of that grade of the offence, and the judgment will go accordingly. So a criterion for determining the punishment, will be always found in the verdict. And we do not doubt but that the record of the judgment and of the pleadings, will be a complete protection of the party. The verdict in this case was general, and the term of imprisonment to which the defendant was sentenced, was within the term prescribed forthehighest grade of the offence. For these reasons, we do not believe that there was error in denying the motion of the defendant to arrest the judgment.

[4.] Before considering the points further made in this record specifically, I remark that it is not only the right, but it is the duty of any private person present when a felony is committed, to apprehend the felon ; and when a felony has been committed, any private person acting upon a reasonable and probable ground of suspicion, may also apprehend the person suspected of the crime. The apprehension, under these circumstances, may be made without a warrant, but it is only for the purpose of taking the offender before a Magistrate. He may be taken and detained, until he can be committed to the custody of the lawn The arrest is for no other purpose. And when made upon actual knowledge and observation of the commission of the crime, it is not only an act which the law allows, but one. which it regards with favor. 2 Hawk. P. C. 74. 2 Hale’s P. C. 77. Cald. 291. 4 Taunt. R. 34-5. Price’s R. 525. 4 Black. Com. 293, n 16. 11 Johns. R. 486.

[5.] It is important also, to refer to the distinction between larceny and robbery. Whilst robbery is a species of larceny, and whilst felonious taking is an element common to both, yet the two offences are widely different. The criterion which distinguishes robbery from larceny, is the violence which precedes the taking. There can be no robbery without violence, and there can be no larceny with it. I do not, in this connection, limit violence to actual force, but mean violence, actual or constructive. It is violence that makes the former an offence of greater atrocity than the latter. Qui vi rapuit, fur improbior esse videtur. 4 Black. Com. 242.

[6.] Again, threats of a prosecution amount to that violence by construction, which con.'.tüues the offence of robbery, only in one instance, and that is when the threat is to prosecute for an unnatural crime; and it will be robbery, whether the party is guilty or not. So abominable is the crime, and so destructive is even the accusation of it, of all social right and privilege, that the law considers that the accusation is a coercion which men cannot resist. This seems to be the only case in which a threat to prosecute, will supply the place of actual force. 2 Leach, 730. 1 Ibid, 139. 2 Russ. 1009. 1 Car. and P. 79. 1 Russ, on Crimes, 5 Amer. edit. 884.

So that threats to take one before a Magistrate, or to prosecute for any other.offence, or accusations of other crimes, although these may have the effect of extorting money or property from a person, do not make the transaction a robbery.

[7.] If, however, such threats or accusations are accompanied with force, actual or constructive, and the property or money is given up in consequence of this force, the transaction is robbery. Nor is the guilt of the party accused, any defence to an act of robbery. If property is extorted by violence, upon a charge of larceny, or any other crime, the offence is neither justified nor mitigated by his guilt, nor aggravated by his innocence. The law will not permit property or money to be violently taken from a citizen, because he happens to be a guilty man. He is liable to the law if guilty, and under the protection of the law, whether innocent or guilty.

[8.] We have seen already, that any one may arrest a person suspected of a crime, with-a view to take him before a Magistrate, and to have him legally brought to trial. In such case, his guilt or innocence may be a very material matter with the pe rson arresting him. He is interested at least, to show reasonable and probable cause to suspect his guilt. That, however, is a different affair from robbery. So also, a person against whom a crime has been committed, may receive money or property under an agreement not to prosecute, either with or without an arrest and without violence. This is not to be confounded with robbery; it is compounding a felony, -when the offence is of the grade of felony. It is certainly proper, in determining whether this defendant, under the evidence, is guilty of robbery or not, to look to all these things ; but what I mean to say is, that if the property in this case was extorted by violence, if such is the proof,, then the offence cannot be false imprisonment, or compounding a felony, or any other offence but robbery, and that whether Braswell'stole the buggy wheels or not. It is true, too, that if a party, bona fide believing that property in the personal possession of another belongs to him, take that property, and none other, away from him, with menaces and violence, it is not robbery, and it will be for the Jury to say whether the party acted under such bona fide belief. So, if in this case, the defendant bona fide believing that the buggy wheels in the personal possession of Braswell belonged to him, had taken them alone by threats and violence, he would not have been guilty of robbery. Russell on Crimes, 1 vol. 871, 872. 3 C. and P. 400. He did not take the buggy wheels, but other and far more valuable property; so that a question of this sort does not arise.

[9.] We have seen that by our Penal Code, robbery is committed by force or intimidation. Force implies actual personal violence, a struggle and a personal outrage. If there is any injury done to the person, or if there is any struggle by the party to keep possession of the property before it is taken from him, there will be sufficient force or actual violence to constitute robbery. This is a matter so easily understood, that I must dwell no longer upon it. 3 Chitty, C. L. 804-5. 1 Leach, 335. Ibid, 320. 2 East. P. C. 709. 1 Russell on Crimes, 875, 876, margin.

[10.] Intimidation, as I have before stated, is constructive force. As force in our definition, is the same with the- violence of the Common Law definition, so intimidation in ours, is- synonimous with putting in fear in the Common Law definition. Putting in fear, is the meaning of intimidation. To intimidate is to make fearful — to inspire with fear. The construction, therefore, which the British Courts have put upon putting in fear, is just that construction which is due in our Courts to intimidation. Robbery may be committed, by putting one in fear of injury to the person, to property or to character. In relation to all cases of robbery by intimidation, it is held, that where property is extorted by fear, it is robbery, although it be taken under color of a gift.

[11.] The talcing must be against the will of the person robbed, yet it may seem to be with his consent, when it is really delivered from fear. If it is apparently voluntary, yet from the facts and circumstances itis from fear, it is still robbery. Thus, if a man with or without a drawn swmrd or other offensive weapon, but with such circumstances of terror as indicate a felonious intention, ask an alms of one who gives it to him through mistrust and apprehension of violence, it will be robbery. So, in this case, although the executing of the bill of sale, and the delivery of the wagon, &c. may seem to have been the voluntary acts of Braswell, yet if done under such circumstances of terror as indicate a felonious intent, it will be robbery, and the Jury are to judge of the facts and circumstances of terror. 1 Russell on Crimes, 871, 879. 2 East. P. C. 711. 4 Black. Com. 244. What, we inquire, is intimidation ? I have already remarked upon fear of injury to character with sufficient fullness for the necessities of this case. The evidence does not indicate any threats of injury to the property of the prosecutor, and it is not necessary, therefore, to discuss that division of the subject. Fear of injury to the person is the ground of violence now to be noticed, and this is the point upon which the case mainly hinges. As to the amount of this fear. Where property is obtained by this means, it will be robbery, although there be no great degree of terror or affright in the party robbed.

[12.] The rule is this: if the fad 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. Fast. 128. 4 Black. Com. 243. 1 Hawk. P. C. 96. 1 Leach, 280. 3 Chitty's C. L. 803. 1 Russell on Crimes, 879.

[13.] Nor is it necessary that actual fear should be strictly and precisely proved, for the law' in odium spoliatoris, will presume fear where there appears to be just ground for it. Fost. 128. 2 East. P. C, 711. 1 Russ, on Crime, 879. What are circumstances of terror, cannot be .with certainty stated. They are of course various. The rule laid down, gives the safest criterion for their ascertainment, that is, the circumstances of terror are such as in common experience are likely to create apprehension of danger. If, according to common experience, the apprehension of danger, growing out of the circumstances, is so great as to constrain a man to part with his property for the safety of his person, then they are sufficient to make the taking violent, and a robbery. The place, the time, and the number of the assailants, are to be considered — -as a retired place, at night, and a number so great as to make the idea of resistance impracticable. To these may be added uproar, and shouts, and disguise, and the presence of offensive weapons. See the case of robbery on Gadshill. 3 Shakespear, 462 to 465. Threats by word or gestures are of themselves sufficient to imply violence, and are the most usual means of intimidation.

[14.] Nor is itindispensable that the delivery of the property be contemporaneous with the assault, if there be force, or with the first impression of fear from threats or circumstances, of terror; but if the property is delivered afterwards, and whilst the fear or apprehension of danger continues — or if the circumstances of terror or the threats are continuous up to the delivery— the whole is one transaction, and may be robbery. In such case, it is a taking, in law, and is as much without consent as if the taking was immediate. So it has been held, that if thieves attack a man to rob him, and finding little or nothing about him, force him by menace of death to swear to fetch them money, which he accordingly does, and delivers it to them whilst the fear of the menace continues, it is a felonious taking, and a robbery. 1 Russell, 871. 3 Inst. 68. 1 Hale, 532. 2 East P. C. 714.

So in this case, if the fear, from the circumstances of terror and tin eats, continuedfrom the first assault upon Braswell up to the delivery of the property to Long, of which the Jury are to judge, the taking was felonious, and the offence was robbery.

[15.] I add, simply, that the taking must be animo furandi, that is, with a view to steal. Having with care endeavored to lay down the rules and distinctions which seem to me to apply to the case, I proceed to test briefly both the ruling and the declining to rule as requested of the Court, by them. And however he may in some of the numerous points which he was called upon to decide, seem to have ruled in conflict with them, yet I think it will be seen that he did in effect administer the law of the case correctly.

[16.] The presiding Judge was requested to charge, that if a charge was made of a crime, and the property alleged to have been stolen, was given up on consideration not to prosecute, that will not amount to robbery, by putting the accused in fear of a charge of an unnatural crime. He had been previously requested to charge that to constitute robbery, the party must be put in fear of some, personal or bodily violence or injury, or in fear, by threats of a charge to prosecute for an unnatural crime. He declined to instruct as asked in the former request, and according to the latter clause, in the last request; saying that there was no evidence about an unnatural crime, and therefore, that matter had nothing to do with the case. We hold, that the Court is not bound to give in charge a true principle of law, if it does not grow out of the case made, nor is he bound to instruct in the language of a request, or in immediate response to it, if in substance at any time the instruction desired is given. Nor is the Court bound to charge an isolated principle which is pertinent and true, when it is presented thus isolated, and its being given singly, would in his judgment mislead the Jury as to the true legal merits of the cause.

[17.] Nor is he bound to charge a mixed proposition, if part is relevant and part is irrelevant, even although each part may be singly true. It is his duty to instruct as to the law in its application to the case made, and the wrhole case. He did charge the Jury that if the property was given up solely from the fear of a criminal prosecution and its consequences, the offence was not robbery. This would seem to be going even farther than defendant’s counsel asked him to go. They admit that a threat to prosecute for an unnatural crime, would make a case of robbery. The generality of the Court’s instructions denies even that, for he speaks of a criminal prosecution, and might be construed to mean all criminal prosecutions. The Court explained, however, and said that he would not instruct in reference to an unnatural crime, because there was no evidence in the case referring at all to that. This is true, and instruction as to that was not necessary. It is true, that if a charge (that is, any charge) is made, and the property given up in consideration of an undertaking not to prosecute, it does not amount to a threat to prosecute for an unnatural crime. But what had this to do with the case? Just nothing at all; for although there were threats to prosecute for stealing the buggy wheels proven, and although there is evidence of a promise not to prosecute, yet the charge in the indictment of robbery is predicated not on taking buggy wheels, but a negro girl, a wagon, a set of blacksmith’s tools, and twenty-five bushels of corn; and the proof is that these were delivered to the defendants. Now, to have entertained the proposition in the request in the form stated, would have been to entertain a proposition apart from the case, and would have been calculated to mislead the Jury. It is charged that the Court erred in not giving in charge the following, to wit: “ that if the prosecutor was guilty of stealing the property of the prisoner, and he caught him with it in possession, he had a right to way-lay and arrest him, and take him before a Magistrate ; and if after the arrest, the posecutor agreed to give up the property to settle the case and stop the prosecution, and gave up the property accordingly, it will not be robbery.” This proposition does not grow out of the case. ■ The Court remarked, in declining this request, that “there was no evidence in reference to the prosecutor being taken before a Magistrate.” This is true, but there is evidence that Long threatened to take him before a Magistrate. But this request assumes that the case it puts, is the case made, and the assumption is-nottrue. It would have been pertinent, if the property of which the prosecutor is charged to have been robbed, was the property which he was charged with stealing, and if after threats to prosecute, it had been given up upon an agreement to forbear to prosecute. But such is not the case in the pleadings or the proof. The buggy wheels really have little to do with this case. The robbery was not charged to be of buggy wheels, nor so proven. And the presiding Judge is in nothing in this case so much to be commended, as in the steadiness with which he refused to be led off in a false direction as touching the larceny by the prosecutor, of these same buggy wheels, by able and zealous counsel.

He was requested to charge “that to maintain this indictment, the State must prove a larceny, and prove it to have been committed under the circumstances which, together with it, constitute the offence of robbery,” and itis alleged that he did not so charge. True, he did not, in the terms of the request, but did in substance; saying to the Jury, “that the distinction between larceny and robbery was this: in the first, the property is taken privately, and without the knowledge of the owner; in the other, forcibly, with his knowledge, but against his will. In other respects the two offences agree.” Whether this be the law, as understood by counsel making the request or not, yet we think it is the law. Again, the Court was requested to charge “that if the Jury believe from the evidence that the defendants did not intend to steal the property, then it is not robbery,” and is complained of as not charging it. In response he said, “that in this case the other ingredients constituting robbery being proven to their satisfaction — if they were satisfied as to them, the intention to steal would be manifest by the appropriation of the goods by the defendant — his taking and carrying them off as his own.” That is to say, the robbery being made out by proof of a taking by force or intimidation, (the great ingredients of robbery) the animus fwrandi, is to be inferred from the appropriation. This was clearly right.

Again, he was requested to charge, “that the bill of sale, if procured by force, is of no value, and therefore signing that, did not constitute robbery; that the violence or force, must exist and operate at the time the property is taken.” The Court charged the first member of this request as to the validity of the bill of sale, and proceeded to say, “that if they believed this bill of sale was extorted by force or intimidation at the time it was signed, and afterwards the same night, Ihough four or five miles distant, the force or intimidation still continuing, and the prosecutor still operated upon by it, gave up the negro; all taken together, it amounts to one transaction, and is robbery.” In a previous part of this opinion, I have laid down these propositions, thus stated by the Court, in substance, as sound law in reference to robbery, and shall not remark upon them farther. After noticing all the requests to charge, the presiding Judge instructed the Jury farther in these words : “If you believe from the testimony, that the prosecutor gave up his property solely from the fear of a criminal prosecution and its consequences, it amounts in law to extortion by duress, or at farthest, compounding a felony. But if you believe from the testimony, that the defendant Long, together with Dishough and others, knowing that the prosecutor had taken the buggy wheels, (whether he stole them or not, is in the judgment of the Court, immaterial,) entered into a conspiracy to plunder him of his property, and in pursuance of such conspiracy, instead of taking out a warrant against him, induced him in the dead hour of the night to return the wheels to a particular place, and there lying in wait for him, did rush out upon him with cries of, don’t shoot, boys, and threats to shoot, seize him and hold him, and extort from him, through fear of personal violence, terror and alarm, produced by the surrounding circumstances united, and in addition to the threats to prosecute and send him to the Penitentiary, his wagon and the bill of sale on the ground and the negro, the same night, the defendant Long and another still accompanying him for the purpose, and run off the negro the next day to parts unknown — the defendant is guilty of robbery, and it is the duty so to find him.” There is some incoherence in this charge thus taken from the bill, because, no doubt, imperfectly taken down. To it the defendant- excepted generally, but the assignment limits it thus, “'that the Court erred in the conclusion of the charge to the Jury, by saying to them that if they believed from the testimony an assumed state of facts, to some of which there was no proof, and especially of unqualified threats to shoot, and upon others, it being contradictory, the defendant is guilty of robbery, and it is the duty of the Jury so to find him.” Conceding then, as this assignment does, that in the concluding part of the charge, the Court did not err as to the law, it asserts error in this, that it was founded on an assumed state of facts — to some of which there was no proof, and especially as to unqualified threats to shoot — and as to other assumed facts, the proof was contradictory. If it is true that any of the facts referred to by the Court, are not directly and unequivocally proved, but concerning which there is in the record contradictory proofs, yet it was competent for the Court to refer to them in his instructions, leaving the Jury to determine as he did, whether the facts were proven or not. The conclusion to which he arrives, is depend • ant upon the finding of the Jury. The charge is hypothetical. He tells them, if they believe from the testimony, so and so, then the defendant is guilty of robbery. So far as relate to facts upon which the evidence is contradictory, it was competent for the Court to refer to them, leaving the Jury to settle the question whether they are proven or not. We do not think that there is reference made to a single fact in the charge of the Court, in regard to which there is no evidence. Not one. The state of facts presented, is such as the testimony exhibits. There is evidence that Long and Dishough and- others knew that Braswell had taken the buggy wheels — that they combined to plunder him of his property. There is no evidence that they took him before a Magistrate upon a warrant. There is evidence that he was induced to carry the buggy wheels to a particular place at the dead hour of night; that they did lie in wait for him, and did rush out upon him with cries of “ don’t shoot, boys ; ” did seize and hold him, and did threaten to shoot him; that a bill of sale for the negro woman was brought to him and signed upon the ground; that he was threatened with a prosecution and the penitentiary; that Long and -another..went with him the same night to his house, and that the negro, woman was'there, and there delivered to Long, and that he carried her off. In relation to the threat to shoot, which the assignment specifies as a fact not proven, it is proven to have been made. The prosecutor swears that Cruse said, “if you attempt to escape, I will blow a ball through you,” and that afterwards Long said, “God damn you, if you attempt to escape, I will kill you.” These threats were made whilst he was held. After they let him go, Long again threatened to kill him if he attempted to escape. Stress seems to be laid upon the threat being qualified. If you attempt to escape, then, said they, I will blow a ball through you, or I will kill you. Why, the very object of the threat was to detain, alarm and coerce him. In the light of the law, the qualification means nothing. It was intimidation, with or without the qualification. But the only question as to this assignment is, W’as there evidence of a threat to shoot? There was, and the Court did not assume it. And whether, in the execution of the bill of sale, and the delivery of the property, Braswell was influenced by fear of bodily injury, the Court leaves for the determination of the Jury, upon their own estimate of the facts. For it is upon their belief from the testimony that he was so influenced, that he instructs them to find Long guilty of robbery. So we cannot sustain this assignment.

The evidence to show what Dishough did with the negro woman, has very little to do with Long’s guilt or innocence. As Dishough was implicated in a common purpose with Long, to take the prosecutor’s property, his receiving the slave from Long and carrying her off, may be considered as bearing remotely upon the charge of robbery, by showing the appropriation by both of them, and on that account correctly admitted. Proof of Bolls’ indebtedness, who was the original owner of the buggy wheels, was very slightly relevant. ■ There was some evidence that Braswell bought them of him, and his embarrassed condition would seem to fortify that idea, by the-usual necessity which such a condition creates of disposing of property. It is true, that the conclusive weight of the testimony is that Braswell stole them. Proof of Bolls’ insolvency could not injure the defendant, and wej shall not send the case back upon a doubt of its relevancy.

Smith’s testimony as to Braswell’s appearance at the Mountain some days after the robbery, stands pretty much upon the same footing. At the time when the assault was committed and the property given up, threats were made of a prosecution, and a requirement farther that Braswell should ,3eav§, the State. His condition at the Mountain a few days after the affair transpired, as an alarmed and flying man, was corroborative of this requirement being' made, and thereby confirmatory of the whole scheme of plunder.

[18.] It is assigned for error, that when the Court instructed the Jury, according to the requests of counsel, he did it without any exposition of the principle to the Jury, and without any application of it to the facts. The fact was that he read the request distinctly to the Jury, and said to them, that is the law. It is proper that instructions should be given in such way as that the Jury should understand the Court. There can be no rule but this. When this is done, no, error can be committed. And when a proposition is distinctly read to the Jury, and they are informed that it is the law, we cannot assume that the proposition is not understood by them. The, contrary is the inference. At the same time, no one need be informed that in presenting a legal proposition to the minds of unprofessional men, the utmost plainness and painstaking in its elucidation are desirable, and for the most part necessary; and the obligation of the .Court is not fully discharged unless its application to the case is clearly made. But it is to be noted that in this case, requests were made by able counsel, in all conceivable forms, and that besides the responses which were'made to them directly, the presiding Judge gave the Jury instructions at large. It is therefore fairly to be presumed (and we think is true) that in all that was said and done by the Court, all the points ruled, received a fair exposition. Very different is this case from the one referred to, to sustain this exception. In that case, counsel from his seat made a request to the Court, and the Court simply replied to the counsel, well, 1 charge it. Colquitt vs. Thomas et. al. 8 Geo. 268.

[19.] That was error — this is not. Counsel for the defendant requested, before the concluding argument to the Jury on their part was begun, and whilst the argument for the State was in progress, to be furnished with the authorities relied upon by the State, and the Court replied, “you shall be furnished with them before your concluding counsel commences his argument, and they shall be read too, if you desire to consume another hour of the time of the Court.” It is not assumed that any right was denied, but the exception is, that the remarks of the Court, made in the hearing of the Jury were erroneous, because calculated to prejudice the defendant’s cause. Not necessarily, and therefore not error. The remark of the Court which invoked the exception, that defendant’s Counsel should have the authorities read too, if they desired to consume another hour of the time of the Court, was not an expression of opinion on the facts, nor did it intimate a censure upon the defendant, or relate directly or indirectly to his guilt or innocence. We presume not to prescribe the manner of intercourse between the Court and the Bar. We leave that to the good sense and high breeding which so very generally characterise both, except where we find that it affects the rights of parties; then it is within our corrective jurisdiction.

[20.] During the concluding argument for the State, counsel for the defendant called the counsel for the prosecution to order, alleging that he misrepresented the testimony of the witness Johnson, and asked the Court to correct him by calling the witness back, who was present, or by referring to the brief of the testimony taken down upon the trial. The Court directed the counsel for the defendant to take his seat, saying that his notes were a mere private memorandum that he was required to keep, and that the Jury would decide. This is assigned for error. Now, it does not seem, from the history of this passage, briefly detailed in the bill as above, that the Court denied the right of defendant’s counsel to correct the counsel for the State. He did in fact rise in his place and correct him. Nor did the Court affirm that the one or the other was right in his recollection of the testimony. He expressed no opinion, but said the Jury would decide. The ultimate decision as to what is proven, is the province of the Jury. Yet it is certainly the business of the Court, when practicable, to correct die misrepresentations of the testimony by counsel, particularly when that counsel is in conclusion. And it is practicable, when the witness whose evidence is charged to be misrepresented, is in Court. He ought to be called to say what he did testify. And it is practicable in cases in which, like this, the law requires the testimony to be taken down, by reference to the brief. We differ with the Judge in his opinion, that the brief of the testimony taken down in cases of felony, is but a memerondum for his private use. It is taken for the use of the reprieving and pardoning power, primarily no doubt; and we see no objection, where the witness is not at hand, to its being used to correct a misrepresentation on the argument. Its verity is presumed, because it is taken under as serious sanctions as any act is done by the Court or its authority in the progress of the trial. It is made the duty of the Judge to take or cause it to be taken down, and in the event of a conviction and sentence, it is required to be approved by the Court, and recorded, anc&upon application for a reprieve or pardon, a certified copy of it must accompany the application. Cobb’s New Dig. 841, 858, 859. We have held it error for counsel, when objected to, to be allowed to comment upon facts not proven. (See a case from Stewart County, tried before this Court at Americas in July last, vol; 11, page 615.) This is not exactly a case like that. There, the facts were not claimed to have been proven ; whilst here, the controversy was as to what a witness who ivas sworn, had testified. There the Jury could not judge between the parties ; the facts improperly commented upon not being in any form before them ; here they can decide, because there was evidence on the subject-matter about which counsel disagreed. Under all these views, we will not say that the refusal of the Court to have the testimony of Mr. Johnson set right, either by calling back the witness, or by refering to the brief, was error; but we do say it was an irregularity. And the same may be said of the exception founded on the refusal of the Court, under the circumstances, to hear argument in favor of the motion to arrest the judgment and the rule for a new trial.

,. _Jt is claimed in the motion for a new trial, that the verdict was 'contrary to law and evidence, and the Court is charged in the bill to have erred in not granting it on these grounds. From what has been already said about the law of the ease, it is, I hope, clear, that the verdict was not against law. Of course we will not disturb a verdict on the facts supported by the evidence, as this is. The rule is, if there is evidence to support the verdict, it stands, so far as this Court is concerned. That there was evidence going to show that this defendant was guilty, is too obvious to require a single word.

[21.] In prosecutions for robbery, we hold that the person robbed is competent to prove that at the time of the robbery he was scared. He can speak to a matter of his own consciousness and experience. Why not as well as to a fact which he knows through the sense of seeing, or hearing, or feeling ? The testimony of Braswell to the fact of his “ being scared,” was properly admitted.

Let the judgment be affirmed.