Brennon v. State

25 Ind. 403

• Court: Indiana Supreme Court
• Decided: November 15, 1865
• Status: Published

Opinions

Frazer, C. J.

This was an information for robbery. It sufficiently avers the facts necessary to give jurisdiction to the court, and charges in proper form the taking of divers articles from the person of one Herron, against his will, by force and violence. Various articles of personal property were alleged to have been thus taken, as a pocket book, a pair of bullet moulds, a watch chain, &c., and in addition thereto divers United States legal tender treasury notes, and other bank notes, the denominations and value of which, as well as the value of the other property, are alleged. The description of the notes was sufficient; it did not need to be more particular than in larceny. Terry v. The State, 13 Ind. 70.

The notes were properly put in evidence without notice to the defendant to produce them. It would be a novel doctrine that such notice must be given in order to render them admissible.

But a majority of the court do not hesitate to say that the evidence did not sustain the charge of robbery. Herron was lying on the ground at night in an unconscious state, the result of intoxication; the defendant standing astride his body, taking from his pocket the property and putting it in Ms own, was. discovered by policemen and fled. Except the fact that Herron’s pockets were turned inside out, there was no proof of violence; indeed, the evidence was distinct that there was no other force used than such as was necessary for that purpose, and to transfer the property from the pocket of Herron to that of the defendant.

It may sometimes be a nice question, whether a case be robbery or larceny. Some physical exertion is usually necessary to commit the latter crime. This is force hi a sense, but force is not always violence, au essential element of the robbery charged imthe ease before us. It is true, as was observed by this court in Seymour v. The State, 15 Ind., 288, that the particular degree of force necessary to constitute robbery is not defined, either by the statute or the common law; nevertheless it does not follow, and it would be contrary to all authority to hold, that any force is sufficient. There must be enough to constitute violence. Thus, it has been often holden that a sudden snatching from a person unawares is not sufficient. McCauley’s Case, 1 Leach 287; Baker’s Case, id., 290, note a; 2 East’s P. C., 702, 703. In Rex v. Gnosil, 2 C. & P., 304, it was held that “ the mere act of taking being forcible will not make the offense a highway robbery; the force used must be * of such a nature as to show that it was intended to overpower the party robbed and prevent his resisting, and not merely to get possession of the property.” But this language may be too broad, for it has been ruled that if the taking be by such violence as does injury to the party robbed, as in tearing a lady’s ear in obtaining her ear ring, (Lapier’s Case, 2 East P. C., 708,) or her hair in taking a diamond pin fastened therein, (Moores’ Case, 1 Leach, 335,) it is sufficient. Indeed, The State v. McCune, 5 R. I., 60, and Mason’s Case, Russ. & Ry., 418, go still further, and, as we think, to the very verge of the law, holding that if, in taking a watch, force enough be used to break a ribbon, in the one case, or a steel guard chain, in the other, by which the owner had attached the property to his person, it would be robbery. Togo further than this, would be to recognize no distinction whatever between robbery and larceny from the person, and we must do that in order to affirm the ease before us. There is no motive, however good, which could justify us in doing this; and, in view of the statute requiring the prisoner to be returned to Marion county for trial, where he can be indicted and, doubtless, convicted of larceny and punished therefor, there would be not even an apology for failing to reverse the case.

The judgment is reversed, and a new trial ordered. The prisoner is ordered to be returned to Marion county, &c.