Commonwealth v. Humphries

A larceny committed with actual force and violence, or with a constructive force, by any assault and putting in fear, is a robbery ; and in an indictment for such offence, an allegation of force and violence is sufficient, without alleging that the party robbed was put in fear.

The defendant was indicted for a robbery, at this term, and was tried and convicted at the sittings after the term before Sewall, J., by whom I have been furnished with the following note of the case, which was read by him in Court previously to the prisoner’s being sentenced. “ In the indictment, upon which the prisoner at the bar stands convicted, the allegations are, that with force and arms, in the public highway, he feloniously assaulted- one Peter Tracy, and one silver watch and watch-key, of his goods, &fc., from the person and against the will of the said Peter, in the highivay aforesaid, by force and violence did steal, rob, take and carry away, against the form of the statute ; omitting the allegation heretofore usual in indictments for robbery, of putting in fear.” This omission occasioned some doubt in the minds of the chief justice, and the other justices of this Court, present, when the indictment was preferred by the grand jury, whether the description therein of the offence charged against the prisoner contained all the allegations essential to a technical description of the crime of robbery. Upon the conviction of the defendant, I thought him entitled to have this question examined, as the result might be some mitigation in his punishment.