dissenting opinion.
Gregory, J.I am unable to give my assent to the opinion of the court as to the guilt of the appellant of the crime of robbery, with which he is charged in the information. Something is due fo the -finding of the court below. That court had a better oj>portunity than this to investigate the facts; it heard the witnesses testify. The exact evidence never can be transferred to the record. But it does appear that Brennon, the accused, was found in the night standing astride the body of Herron, the person robbed, rifling his pockets; that Herron was insensible, drunk with liquor, and in a deep sleep; that the pockets of the latter wore found turned inside out; that, ujion being discovered, Brennon fled, was pursued and arrested; that two pocket books, containing the treasury notes and other bills described in the information, and belonging to Herron, were found upon him. It is claimed that this is larceny and not robbery. The statute defines robbery to be the forcible and-felonious taking from the person of another any article of value by violence or putting in fear. 2 G. & H., § 18, p. 442. It has been decided by this court that, as the degree of force necessary to constitute robbery is not described in the statute, it is only necessary that the taking should be by means of force. Seymour v. The State, 15 Ind., 288; Terry v. The State, 13 *406Ind., 70. In The State v. McCune, 5 R. I., 60, tlie prisoner, whilst walking in a public street by night with a stranger, with the pretended purpose of guiding him to a livery stable where he might obtain a conveyance to cany him home, suddenly seized the watch of the stranger, which was in his vest watch pocket, with violence enough to break the silk ribbon watch guard, half an inch wide, about his neck, and exclaimed, “D — n you! I will have your watch,’” and fled with it, pursued by the stranger. It was held that this was highway robbery, as distinguished from stealing from the person, notwithstanding the stranger, who was a witness, could not swear that he feared anything at the time, except the loss of his watch; .the threatening announcement by the prisoner, at the time,.of his intent, accompanied by force sufficient to enable Mm to accomplish it, aggravating his offense to highway robbery, although surprise greatly aided him. Chief Justice Ames, in delivering the opinion of the court, says that this case is “ a stronger case of taking by violence than Mason’s Case, 1 Russ. & Ryan, 418, in which the taking was accomplished only by the force necessary, by two or three jerks, to break the steel guard chain about the neck of the prosecutor, without any announcement of a purpose, byway of threat, or laying-on of hands.”' * * * * * “If there be violence sufficient to effect the evil intent, its degree does not seem to be of importance in characterizing the crime.”'
It would not take as much violence to rob a child or a woman as a robust man, yet violence enough to rob the child would he no less the crime of robbery. It would not take as much force to rob a man “insensible, drunk with liquor, and in a deep sleep,” as it would a sober man, in tbe possession of all his ■ faculties, yet, in my opinion, violence enough to rob the former would he no less the crime of robbery than it would be to rob the latter by all the force and violence • necessary to accomplish the wicked purpose. In the judgment of mankind the former robbery 'would he even more reprehensible than the latter. When *407the defendant was' first discovered be was standing astride tbe body of Herron rifling bis pockets. Wbattbe former bad done before that is left to be presumed from tbe known facts. That be was feloniously-taking tbe money and property of tbe latter is not denied. Have we not a right to infer that be used all tbe violence necessary to aecomplisb tbe wicked design? It would not be a very great stretch of imagination to presume that tbe accused bad some agency in producing tbe “deep sleep” in which Herron was found.
B. L. Walpole and B. K. Mliott, for appellant.. W. W. Woollen, for tbe State.I think tbe judgment of tbe court below was right, and that tbe appellant is now suffering tbe just penalty of his crime.