State v. Gorham , 55 N.H. 152 ( 1875 )

By sec. 16, ch. 264, Gen. Stats., it is provided, — If any person, by assault or by violence and putting in fear, shall feloniously steal, rob, and take from the person of another any money, goods, chattels, or other property which is the subject of larceny, he shall be imprisoned from seven to thirty years.

The indictment is founded upon this statute, and charges an assault, a putting in fear, and a felonious larceny from the person by violence and putting in fear.

The evidence on the part of the state does not sustain the allegation of a "putting in fear," but it tends to support all the other charges in the indictment.

1. The first question presented is, whether the indictment is bad for "uncertainty, duplicity, and repugnancy."

Duplicity, in an indictment, is the joinder of two or more offences in one count; but if the indictment charges the defendant with an offence which in its nature includes several inferior offences, as, if it charges a murder, which includes a manslaughter and an assault, it is not for this reason multifarious. 1 Bishop Cr. Proc., secs. 189, 190.

A single count may allege all the circumstances necessary to constitute two different crimes, where the offence described is a complicated one, comprehending in itself divers circumstances, each of which is an offence; and a respondent thus charged with a greater offence may be convicted of one of lesser magnitude contained within it. Thus, an indictment charging the breaking and entering of a dwelling-house with intent to steal, will sustain a conviction of entering without breaking, with intent to steal. Upon an indictment for assaulting and obstructing an officer in the service of process, a conviction may be had for a simple assault and battery. Such indictments are not bad for duplicity. State v. Nelson, 8 N.H. 163; State v. Squires, 11 N.H. 37; State v. Moore, 12 N.H. 42; State v. Ayer, 23 N.H. 301; State v. Webster,39 N.H. 96. An indictment for an attempt to set fire to a building is not bad for duplicity though it may set forth a breaking and entering of the building, as well as an attempt in the building, after the breach and entry, to set fire to it. Said DEWEY, J., — "It is true the counts set forth a breaking and entering, in the night-time, of a certain building therein described; but that allegation is only introduced as a part of the various acts charged to have been committed by the defendant, all which combined authorize the charge of the specific offence made punishable by the statute."

It is not unusual to find, in a count properly framed, all the essential elements of a count for a minor offence, and presenting the objection of duplicity quite as strongly as the present case. Thus, in an indictment for murder or manslaughter, there is a full and technical charge of an assault and battery. Com. v. Harney, 10 Met. 422, 425. It is not, therefore, an objection to an indictment that a part of the allegations may be lopped off and yet the indictment remain sufficient. 1 Bishop Cr. Proc., sec. 191.

In Barnes v. The State, 20 Conn. 232, WAITE, J., said, — "No matters, however multifarious, will operate to make a declaration or information double, provided all taken together constitute but one collected charge, or one transaction."

In Francisco v. The State, 4 Zab. 30, it was said (with regard to an indictment charging assault, battery, and false imprisonment), — "The assault, the battery, the false imprisonment, though in themselves separately considered, are distinct offences, yet collectively they constitute but one offence."

And in 1 Dennison's Crown Cases 22, 28, Baron PARKE said, to counsel arguendo, — "Your objection would apply to every case of a burglary and a larceny. There would be, first, the burglary; secondly, the larceny; thirdly, the compound or simple larceny; fourthly; the stealing in a dwelling-house." And TINDAL, C. J., added, — "This is one set of facts; it is all one transaction; the prisoner could not have been embarrassed."

The application of the foregoing observations and citations to the case at bar is obvious. Here is, first, the assault and putting in fear; secondly, the simple assault; thirdly, the larceny by violence; fourthly, the larceny from the person; fifthly, the simple larceny: but they are all described as a set of facts constituting one transaction: the prisoners could not have been embarrassed. They were charged with all the facts which taken together constitute the highest offence comprehended in the indictment. It is not bad for duplicity. It is not bad for uncertainty. If the lesser offence of larceny from the person, or of simple larceny, had been charged, the prisoners could not have been called upon to defend against proof of the assault or the violence and putting in fear. But being charged with all the facts which constitute a robbery, the graver offence, incapable of being committed without comprehending in the transaction the larceny from the person by assault or by violence and putting in fear, they could not have been embarrassed by a recital in the indictment of all the particulars and distinct charges which, taken together, constitute the higher offence. Best's Principles of Evid. 386.

2. The second exception is founded upon the denial of the motion to quash the indictment, because it "alleges the bills to be goods, chattels, and moneys of him the said Stephen Lohiel; whereas (1) the evidence shows that they were the property of Peter Martel, and (2) bills are not goods nor chattels nor moneys."

(1) The money stolen was correctly described in the indictment as the money of Lohiel.

The general rule is, that where there is a general and a special owner of the thing stolen, the indictment may lay the ownership in either the one or the other, at the election of the pleader. "If, for example, the goods are stolen from a common carrier, an allegation that they are his, or the general owner's, is equally good." 2 Bishop Cr. Proc., sec. 682. Where goods are stolen out of the possession of a bailee, they may be described in the indictment as the property of the bailor or of the bailee — 2 Hale P. C. 181 — although the goods were never in the real owner's possession, but in that of the bailee merely, "as, for instance, goods left at an inn" — Rex v. Todd, 2 East P. C. 653 — or intrusted to his keeping. Rex v. Taylor, 1 Leach 356; State v. Somerville, 21 Me. 14; State v. Ayer,23 N.H. 319; 2 Bishop Cr. Proc., secs. 53, 109.

(2) It is quite unnecessary to trouble ourselves with the technical distinctions and refined subtleties which encumber the books concerning the question whether moneys are goods or chattels, and whether bank bills are moneys; — see 1 Bishop Crim. Law, sec. 357-359.

The indictment charges the stealing of "two bank-bills for the payment of two dollars each, * * of the goods, chattels, and moneys or him the said Stephen Lohiel." The terms included in this sentence "of the goods, chattels, and moneys," may be "lopped off" or expunged as surplusage, or they may be suffered to remain. They neither add to nor detract from the plain signification and meaning of the description of the property taken.

The statute relates to the robbery of "any money, goods, chattels, or other property which is the subject of larceny." "Bank-bills" are the subject of larceny, by ch. 260, sec. 3, Gen. Stats., and no other description of them is required then that employed in the present case. State v. Mahanna, 48 N.H. 377; Hamblett v. State, 18 N.H. 385.

Bank-notes are "personal property" within the meaning of the Ohio statute against robbery, which is in all substantial descriptive particulars like our own. Turner v. The State, 1 Ohio St. 442.

3. The third exception is to the instruction of the court to the jury, to this effect: "The taking must not precede the violence and putting in fear, in the charge for robbery; but if the respondents did feloniously steal, rob, and take from the person of Lohiel the notes or bills or either of them, of the denomination and description charged in the indictment, by assault, or by violence and putting in fear, that would be sufficient to sustain the indictment." The substance of this instruction is, that a larceny by assault sustains the indictment, and comes within the statute.

The statutes of most of our states against robbery are merely a reassertion of the common law. Bishop on Statutory Crimes, secs. 519, 521.

Among the common-law definitions of robbery are these:

By East. "A felonious taking of money or goods, to any value, from the person of another, or in his presence, against his will, by violence or putting him in fear." 2 East P. C. 707.

By Blackstone. "The felonious and forcible taking from the person of another of goods or money, to any value, by violence or putting him in fear." 4 Bl. Com. 242.

By Lord MANSFIELD. "A felonious taking of property from the person of another by force." Rex v. Donolly, 2 East P. C. 715, 725.

Russell adopts the definition of East as given above — 1 Russ. on Crimes *867; and he says (*875), — "The words of the definition are in the alternative, `violence or putting in fear;' and it appears that if the property be taken by either of these means, against the will of the party, such taking will be sufficient to constitute robbery. The principle, indeed, of robbery is violence.

Wharton. "To constitute robbery, it is not necessary that the person robbed must have been first in fear of his person or property; if the goods be taken either in violence or by putting the owner in fear, it is sufficient to render the felonious taking a robbery." Wharton's Am. Cr. Law., 3d ed., 629.

Greenleaf adopts the definition of Lord MANSFIELD, as given above. 3 Gr. Ev., sec. 223.

Bishop. "To constitute a robbery there must be either some act of direct violence, or some demonstration from which physical injury to the person robbed may be reasonably apprehended." 2 Bishop Cr. Law, sec. 1109; — see, also, 3 Arch. Cr. Pl. 717-723; U.S. v. Jones, 3 Wn. C. C. 200.

Hawkins says, — "It is not necessary that the fact of actual fear should either be laid in the indictment, or be proved upon the trial; it is sufficient if the offence be charged to be done violenter et contra voluntatem." 1 Hawk. P. C., 7th ed., 235, sec. 9.

Foster. "I am very clear that the circumstance of actual fear at the time of the robbery needeth not to be strictly proved. * * And if fear be a necessary ingredient, the law, in odium spoliatoris, will presume fear where there appeareth to be so just a ground for it." Foster's Crown Law 128.

In accordance with these common-law definitions is the alternative definition of our own statute and the statutes of many other states. And it follows that an indictment is good which omits the words "putting in fear," because it would have been good at common law. Com. v. Humphreys,7 Mass. 242. And if words equivalent to these might well have been omitted, they may now be rejected as surplusage.

"When one draws an indictment in such a case as this, the first question is, whether both alternatives shall be covered or only one, and if the latter, which one. In matter of law, this indictment would be good, drawn on either of the alternatives without mentioning the other; but in such a case the proofs must sustain the charge as laid. But though, in law, when the, indictment is adequate, it is sufficient to prove either the force and violence or the putting in fear, and both need not be shown, there is no repugnance between them; therefore the alternative clauses may be covered by a single count, and for most cases it is practically best they should be." Bishop on Stat. Cr., sec. 521.

It is "practically best," because the allegation should be broad enough to cover the evidence which may be adduced in support of the fact comprehended in the charge.

If the alternative clauses are combined in a single count, they will, of course, be expressed with the use of the conjunctive "and," and not the disjunctive "or," so that there may be no uncertainty of allegation.

4. The case finds that "the respondents' counsel, in his argument to the jury, said he `should ask the court to instruct them that, in the event of their not finding that the offence of robbery had been committed, the crime could be reduced to a petit larceny, and that then the true ownership of the bank-bills alleged should be proved as averred, and that any variance would be fatal to the indictment.' The court, being occupied in looking over his minutes of the testimony, did not hear this remark, but if he had, would have refused the instructions in the shape asked for. The instructions as to ownership of the treasury notes or bank-bills would not have been different from those that were given. So far as the instructions asked for were not otherwise given to the jury, they would have been refused, and the respondents may be considered as excepting to such refusal."

The subject-matter of this exception has been already considered and found to be untenable. If the court had been requested to instruct the jury "that in the event of their not finding that the offence of robbery had been committed the crime could be reduced to a petit larceny," the instruction would, doubtless, have been given. But under the definition of the offence, as correctly given by the court, counsel every naturally and properly seem to have refrained from the folly and absurdity of making such a request.

5. The fifth exception is, that "the verdict is against the law and the evidence." I am unable to discover any grounds for this exception, in view of the law as I have declared it; and the evidence in the case, as reported, seems abundantly sufficient, if credited, to warrant and demand a verdict of guilty against both respondents, — Gorham being accessory to the taking of the money with violence by Mooney, and properly charged as a principal with Mooney in the indictment. 1 Bishop Cr. Proc. 546.

The defendants' counsel contend that the instructions were erroneous, because there was in fact no evidence of an assault.

"An assault is any unlawful physical force, partly or fully put in motion, creating a reasonable apprehension of physical injury to human being." There need be no actual contact of person, nor any actual fear, provided physical force be actually put in motion (as by pointing a gun, whether loaded or unloaded, for example), and the motion be such as to create a well founded apprehension of physical injury. So, too, if there be no fear produced, the assault is consummated if an injury is actually inflicted. 2 Bishop Cr. Law, secs. 4954.

What is an injury inflicted by physical force?

Any forcible taking of property from the possession of another by means which overcome resistance, however slight, is a taking by the infliction of actual injury, and so is by assault.

Mr. East observes, "that no sudden taking of a thing, unawares from the person, as by snatching anything from the hand or head, is sufficient to constitute a robbery, unless some injury be done to the person, or unless there be some previous struggle for the possession of the property." But in the later editions of Hawkins, it is said to be robbery "to snatch a basket of linen suddenly from the head of another." "The true doctrine," says Bishop, is, that such snatching will constitute robbery, provided the article is so attached to the person or clothes as to create resistance, however slight, not otherwise. 2 Bishop Cr. Law, sec. 1110; 1 Hawk. P. C., 7th ed., 236, sec. 10; Fisher's Crim. Dig. 446, 447.

These examples refer as well to robbery as defined by our statute, as to the common-law offence which they are cited to illustrate; for they serve to define the actual injury which is, in the absence of a reasonable apprehension of fear, an essential ingredient of an assault.

It seems to me ridiculous to contend, therefore, that here is no evidence from which a jury might find not merely an assault, but a battery also.

Mooney "put his left arm around Loheil's neck and his mouth to Loheil's ear, and, pretending to whisper, he put his right hand in the upper vest pocket of Loheil, on the left side, and took therefrom a roll of money," etc. "Loheil tried to prevent the taking of the money, and in the struggle [to prevent the taking of the money] threw Mooney to the floor."

Loheil testified, "I felt his hand in my pocket and saw the money in his hand;" "I saw money in Mooney's right hand, four or five inches from my shoulder;" "I tried to grab his hand; I hollered that he was stealing my money;" "I asked him to give me my money;" "he took his arm off by my squirming;" "I saw him hand the money to Gorham, and Gorham took it;" "Gorham kicked me with his boot."

It would be difficult to show a clearer case of assault, if not in the mere taking of the money out of Loheil's vest pocket, then certainly in the continuing force, struggle, and violence which ensued before Loheil was fully deprived of its possession and control.

But "the court instructed the jury as to what would constitute an assault, and what would be a taking by violence and putting in fear," and "to the instructions given no exceptions were taken at the time except such as appears from the foregoing requests and motions."

It is too late, now, to claim that there was no evidence of an assault competent to be submitted to the jury.