Slike strani


of attack


weapons, or even gestures of attack (1). Indeed, it QUALITIES OF matters not though violence was not at first intended, Weapons or gesbut only results from the owner's resistance. And unnecessary. such violence need not involve any demonstration of injury to the owner's person. If a thief endeavour to steal a watch, and the owner, before it has been drawn out of his pocket, seize the chain, it is robbery, Thief persisting if the delinquent continue to pull at the chain, and drag the watch out of the owner's hand (2). The converse is also true. If, during an assault or scuffle, Resolution to not commenced with any theftuous intent, the assail- after attack. ant form the resolution of carrying off anything belonging to the injured party, the crime committed. is stouthrief or robbery (3). But there must be the intention to appropriate. It is not robbery if a walking-stick, or the like, be carried off in the heat of a

take formed

money offered as

scuffle, without intention to keep it (4). The ques- Ravisher taking tion has been raised but not decided, whether it is bribe to desist. robbery, if a man who is using violence to a woman in order to ravish her, take money which she offers him to induce him to desist (5). But there can be little doubt that such a taking is not robbery.

of present injury.

To constitute robbery or stouthrief, the violence, if Menace must be by menace only, must be by threat of present injury, not merely of some future wrong, unless it be such as to cause reasonable fear, that if the menace of future injury be ineffectual, immediate violence will be resorted to (6). Further, the violence must be simultaneous with the taking. It is only an aggravated assault violently to exact a promise to pay Violent exaction money at a future time (7). Nor is it robbery if robbery. 4 Hume i. 108, and case of Wright there.

of promise not

5 James Templeton, Ayr, Sept. 15th 1871; 2 Couper, 140, and 9 S. L. R. 66.

1 Hume 106, 107.

2 Hume i. 105.-Helen Melville and others, June 25th 1832; Bell's Notes 43. John Wishart, H.C., June 9th 1845; 2 Broun 445.

3 Alison i. 238, 239. James Purves and George M'Intosh, H. C., Nov. 9th 1846; Ark. 178 (Lord Justice-Clerk Hope's charge).

6 Hume i. 107, 108.-Alison i. 231, 232.

7 Hume i. 108. -Alison i. 232.



the violence be subsequent to the taking. If a thief has got possession of an article stealthily, and a Violence subse- scuffle ensue with the owner, in consequence of his endeavours to recover his property, the theftuous character of the taking is not thereby altered (1). Interval between Again, if a person has been treated violently, but the

quent to taking.

violence and taking.

taking has been subsequent to and disconnected from the violence, the offence is not robbery, but theft (2). of course it is not meant by this, that if the assailant has reduced his victim to a state of incapacity for further resistance, as by striking him so that he becomes insensible, or by binding him,-that his crime is theft only, if he thereafter take his property. This is robbery or stouthrief of the very worst kind (3).

It is true of stouthrief and robbery as of theft, that the value of what is taken does not affect the

Where violence subsequent tak

disables owner,⚫

ing is robbery.

Value of no consequence.

Robbery of documents.

crime (4). And notwithstanding the dictum of Alison, that forcing another to deliver up papers, "is "not so properly a robbery as a separate offence” (5), a conviction of robbery for such an act took place many years after the publication of his treatise (6). One case has occurred of a trial for robbery by

1 Joan Reid and Helen Barnett, H.C., Feb. 19th 1844; 2 Broun 116 (Lord Justice-Clerk Hope's charge). The Lord Justice - Clerk Hope's MSS. in the case of James Wylie and others, Glasgow, May 5th 1846, contains the following note: "Court stated to jury that they "thought case one of theft, and that "the violence had been committed "after the theft, to prevent F (the "injured party) from crying out."

4 Hume i. 105, case of Larg and Mitchell in note 4.-i. 108, 109, and case of Cranstoun there.-Alison i. 233, 234 See James Brodie and others, H.C., May 16th 1842; 1 Broun 341 and Bell's Notes 45, where the amount taken was 2d. ; and John Paterson and David Ritchie, Stirling, Sept. 7th 1838; J. Shaw 1, where a sentence of ten years' transportation followed on conviction of two robberies of a halfpenny and 11d. respectively. 5 Alison i. 239.

2 John Dawson, March 14th 1835; Bell's Notes 41.

3 James Blair, June 7th 1830; Bell's Notes 43.-Isabella Welsh or Hollands and John Macginnis, July 12th 1832; Bell's Notes 44.

6 Jas. Dunipace, Glasgow, Dec. 28th and 30th 1842; 1 Broun, 506.

forcibly taking payment of a debt due to the assailant QUALITIES OF himself (1).


Property must

theft applicable.

As in the case of theft, the property must be truly AMOTIO. taken to constitute the crime (2). If the person be taken. assailed take his money from his pocket to deliver it, and it fall to the ground, without the robber getting it into his hand, the crime is not complete (3). As Rules in case of regards what constitutes taking or removal, the rules applicable to theft are equally so to stouthrief and robbery.* If the thing be even for a moment Momentary reremoved from the owner's possession by the delinquent, the crime is complete (4). The crime has been held Although procomplete where the injured party's watch was drawn tached from from his pocket though the chain remained round his neck (5).

moval sufficient.

perty not de


theft competent.

As regards aggravations of robbery and stouthrief, AGGRAVATIONS. the law is not very clearly fixed. Robbery cannot be Prev. con. of charged as aggravated by the person being habit and repute a thief (6). But previous conviction of theft may be charged as an aggravation in a case of robbery (7). It has in several cases been held competent to charge the aggravation of previous conviction of theft in the case of stouthrief (8). But even

1 Donald M'Innes and Malcolm M'Pherson, Inverness, April 25th 1836; 1 Swin. 198 and Bell's Notes 44.

26 note 7. (These were cases of
theft, but the principle is the same.)

6 Ellen Falconer and others,
H.C., January 26th 1852; J. Shaw
546 and 24 S. J. 175 and 1 Stuart
311. (Stuart gives the name of
another accused-Macleod-as the
leading name.)-Alison i. 301.

7 31 and 32 Vict. c. 95, § 12. 8 Alison i. 302.-Jas. W. Walker and others, Glasgow, Jan. 14th 1850; J. Shaw 548 noteDaniel Silliers, Inverary, Sept. 24th 1851; J. Shaw 548 note.Will. Thomson alias Murray and Geo. Bryce alias Rob. Wilson, Glasgow, April 28th or 23d 1861; 4 Irv. 47. (Indictment.) And on * Vide 26 to 28.

2 Hume i. 108.-Alison i. 233, 234. 3 Hume i. 104.-Alison i. 236. 4 Hume i. 105.-Alison i. 234.— Jas. Holland, H.C., Dec. 12th 1808; Buchanan, part ii. 66 (Lord JusticeClerk's charge-Chas. Hope, afterwards Lord Justice-General).

5 Jas. Purves and Geo. Mackintosh, H.C., Nov. 9th 1846; Ark. 178.-See also Will. Cameron, Glasgow, Dec. 22d 1851; J. Shaw 526 and 24 S. J. 140, and the case of Conolly, from Lord Justice-Clerk Hope's and Lord Wood's MSS. at p.


AGGRAVATIONS. this point is still involved in doubt, as in the most

recent case which has occurred, the aggravation was held irrelevant (1). It is thought that the aggravation was properly held relevant in the previous cases. Stouthrief is called by Hume “violent theft,” (2) and in cases of stouthrief it is always the practice to charge that the property was theftuously taken or stolen, as well as masterfully carried off. It is evident

there has been no such previous practice in the case Aggravation of of stouthrief. Stouthrief (3) and robbery (4) may be

aggravated by being committed by means of housePossible aggra- breaking. Although cases do not appear to have

occurred in practice, it is evident that some of the aggravations noticed under the head of theft * must be equally applicable both to stouthrief and robbery. One instance may suffice : it cannot be doubted that it would be an aggravation that the person committing the act was a police officer, whose duty it was to protect property.

Though still capital offences at common law, a sentence of death is never demanded in cases of robbery or stouthrief, and penal servitude is the punishment generally awarded.

In less heinous cases, imprisonment is sometimes inflicted,




the same principle previous con- 24th 1851 ; J. Shaw 548 note.viction of stouthrief has been sus- Will. Thompson, alias Murray, and tained as aggravating a charge of Geo. Bryce, alias Rob. Wilson, theft. John Smith, Ayr, Oct. 2d Glasgow, April 28th or 23d 1861 ; 1860; 4 Irv. 50 note.

4 Irv. 47. The following indict1 John Bryson and others, Glas- ments contain similar charges : gow, April 22d 1863 ; 4 Irv. 384 Thos. Williamson, Ayr, Sept. 1857 ; and 35 S. J. 460. It does not Adv. Lib. Coll.—Michael Flaherty, appear that the cases of Walker Dumfries, April 1857, Adv. Lib. and Sillers noticed above, and Coll.-Patrick Murphy, Ayr, April which are the most direct authori- 1858 ; Adv. Lib. Coll. ties against the objection, were 4 Andrew Kennedy and John brought under the notice of the M'Dougall, H.C., May 16th 1851 Court.

(unreported). The term stouthrief 2 Hume i. 110.

seems more appropriate in such a 3 Daniel Sillers, Inverary, Sept.

Vide 51, 52.



colour of com

seizing vessel.

saries not piracy.

Hostile depredations committed on the seas, without Piracy. a commission from any state to authorise them, are piracy (1) Even where a ship is commissioned, Capture under those on board may be guilty of piracy if they com- mission. mit depredations on property which their commission does not authorise them to capture (2). Taking Crew or others possession of a vessel at sea, whether by those on board, or by others, or feloniously carrying off goods or persons from ships, are acts of piracy (3). But it is Taking necesnot piracy if the master of a ship in distress take provisions or spars or the like from necessity, paying, or granting an obligation to pay for them (4).

It is not clear whether actual taking is requisite to Is actual taking complete the offence of piracy. If a ship, without warrant, chase another, firing into her, and endeavouring to capture her, but through some accident, such as a storm, this result is prevented, has the crime of piracy been committed ? That such an act is highly punishable is evident, but whether it is piracy is a more difficult, and not yet decided, question.

The punishment of piracy is death. It is probable, Prxisiment or however, that in less aggravated cases, the pains of law would be restricted (5).



1 Hume i. 481, 482, and cases of Kidd : Stalfurde : Love and others : Brown and others : and Hews and others there.- Alison i. 638, 639.– More ü. 386.

2 Hume i. 482, and cases of Kidd; and Potts there.

3 Hume i. 482, 483, and cases of Dawson and others; and Heaman

and Gautier in note i. and note *.
-Alison i. 639.-More ii. 386.

4 Hume i, 482.

5 In England by the Act 7 Will. iv. and 1 Vict. c. 88, the Court may inflict a less serious sentence in cases of piracy, where the acts done were not directly to the danger of life.

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