JAMES DONNELLY otherwise PATRICK DONNELLY proceedingsdefend This name instance is in set 110. (upon whom Judgement had been respited) was put to the Bar, when Mr. JUSTICE WILLES delivered the Opinion of the Judges, as followeth:

THE Question, submitted to the Judges, was,

"Whether this offence amounted to a Robbery?"

This point has been solemnly argued before the twelve judges, who all delivered their sentiments seriatim, and were unanimously of opinion that this was a robbery.

The grounds and reasons for this opinion I shall briefly state to the court.

The definition of robbery, as taken from Lord Hale and Hawkins, is,

A felonious and violent taking any money or goods from the person of another, putting him in fear.

To constitute therefore the crime of robbery three ingredients seem necessary.

1. A felonious intention, or animus furandi.

2. Some degree of violence or fear of violence.

3. A taking from the person.

As to the first point, the judges all clearly held, that here was a felonious intention:

The prisoner, a stranger to Mr. Fielding, stops him in the street after it was dusk, between six and seven o'clock in January, and desired, he would give him a present; and when Mr. Fielding asked for what? he replied, You had better comply, or I will take you before a magistrate, and accuse you of an attempt to commit an unnatural crime.

The conduct of the prisoner will not hear two constructions; his meaning was to get Mr. Fielding's money from him.

If a man with or without a weapon drawn orders another to deliver his money, it is a robbery.

So where a man, animo furandi, demands my money, the words he makes use of seem immaterial whether he says, Give me your money, or lend me, or make me a present, or words of the like import, it is a robbery.

As to the several cases ingeniously put by the counsel for the prisoner, the judges declined giving any answer to them, saying that every case must depend on its own particular circumstances.

For the judges declared they did not mean to draw the exact line what should or should not be construed a robbery, but only to say, that the facts proved in this case warranted them to think, that here there was a felonious intention in the prisoner to rob Mr. Fielding.

The second point considered was, What degree of violence or fear was necessary to the crime of robbery.

The putting in fear is not necessary to be laid in the indictment, so as the fact is charged to be done violently, and against the will.

The circumstance of actual fear at the time of the robbery need not be proved, but the law in odium spoliatoris will presume it.

This doctrine is to be found in Foster, 128, who there puts this case.

"Suppose the true man is knocked down without any previous warning to awaken his fears, and lieth totally insensible whilst the thief rifles his pockets, would not this be a robbery? and yet where is the circumstance of actual fear?"

And in the same page describing what degree of fear or violence is necessary to a robbery, the same learned judge says,

"If the fact be attended with those circumstances of terror or violence, which in common experience are likely to induce a man to part with his property, for the safety of his person, that will amount to a robbery."

On the subject of terror, Lord Hale cites a strong case from the Year Books, 1 Hale's Pl. C. < no role > 532.

"If thieves come to rob a man, and finding little about him, enforce him by menace of death, to swear on a book to fetch them a greater sum, which he doth accordingly, this (says his lordship) is a taking by robbery; and yet when he fetches the money he is removed from all terror but the fear of breaking his oath and is out of the reach of violence."

It has been often held that actual violence is not necessary, but that constructive violence is sufficient.

For where such a terror is impressed on my mind as does not leave me a free agent; and in order to get rid of that terror I deliver my money, it is a robbery.

It is clear also that no actual danger is necessary; a man may commit a robbery without having any offensive weapon; and though a tinder-box or candlestick be used instead of a pistol, still it is a robbery.

To examine the present case by these rules: Here are the strongest menaces, and well-grounded apprehensions of personal injury.

A young gentleman from school accosted at night in London streets, by a person he never saw before, whom he must suspect to be a villain. The stranger demands a present. Even that seems sufficient; but the prisoner goes farther, and says, you had better comply, or I will take you before a magistrate. This is a threat of personal violence; for he had every thing to fear in being dragged through the streets as a culprit charged with an unnatural crime.

And when a villian comes and demands money no one knows how far he will go.

This therefore was a reasonable fear which might operate in constantem virum as well as in meticulosam, much more on the mind of a lad come home from school for the holidays.

But it was said for the prisoner that this was, a fraudulent extorting, and not a taking by violence.

In many cases fraud will supply the want of violence; as for instance, breaking is necessary to be laid in an indictment for burglary.

And yet fraudulently getting admission into a house by colour of law, or pretence of taking lodgings or business, have been often held to be sufficient evidence of the breaking into the house.

But the judges did not entirely determine the prisoner's case on this head, but were of opinion in this case there was a proof of constructive violence, which they thought sufficient.

As to the third ingredient, here was clearly a taking from the person, though taking in his presence would have been sufficient.

It may be proper here in my conclusion to state the several authorities, which support this determination of the judges.

I shall not cite them at large, because they are all printed in the Session's Books.

The first was the case of James Brown < no role > , tried and convicted at the Old-Bailey, October 1763, for a similar offence committed on Ralph Hodson < no role > .

He was executed.

Thomas Jones < no role > was tried for a like offence before Mr. Baron Hotham < no role > in February 1776, who was convicted and executed. But before he was executed his case was submitted to the opinion of the judges at Serjeant's-Inn, who held it to be a robbery.

In June Session last, Robert Harold < no role > was tried and convicted of the like charge, but on some doubt on the evidence was afterwards reprieved.

In all those three cases there was this difference from the present, that some actual violence was proved as taking and seising by the arm or collar, but the judges all held this did not make any material distinction; but that sufficient was proved in this case for the jury to find the prisoner guilty of a robbery .

[Death. See summary.]