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Robbery - Particular Requirements

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Use of force or fear. The central requirement of robbery is that the taking be by means of either force or fear. One common type of robbery involving force is mugging, in which the robber grabs the victim around the neck from the rear and forcibly removes his wallet or other valuables. Other common kinds of force involve striking a victim with the fists, a gun, or a blunt object.

Like any other category of crime, robbery presents a number of situations in which it is difficult to determine whether or not there is in fact a robbery. In these boundary situations, if there is no robbery there is generally some other crime rather than no crime at all. If the victim's purse is snatched, for example, it is often difficult to determine whether the force necessary for robbery has been used. If the purse is snatched quickly so that the victim offers no resistance, the common law and many American states find that there has been no robbery and that the crime is instead larceny from the person. If the victim struggles to hold on to the purse, however, so that the thief must jerk it loose, the common law and virtually all the American states find that a robbery has been committed.

Historically, these lines were drawn at a time when robbery was a capital crime and common law judges were reluctant to paint with too broad a brush, and the distinctions consequently emphasize formal logic more than the actual or potential harm. The elderly women who are often the victims of purse-snatchings tend to be badly shaken by the experience even if "force" is not used, but this has not as yet caused any widespread change in the distinctions made.

Picking a victim's pocket is generally not considered robbery because there is no use of fear and because robbery requires more force than that necessary simply to remove the property. However, if the thief jostles the victim in the taking, or if the victim notices the attempt and resists, the crime is robbery.

Fear or intimidation is an alternative to the use of force. The most common situation is the holdup, in which the robber threatens to shoot if valuables are not turned over. The threat may be implied rather than stated verbally, but it generally must be to do immediate rather than future harm. The threat may concern the property holder, members of his family, or another person who is present, and must generally concern death or bodily injury of some kind rather than an injury to reputation. Other threats—to prosecute the victim, to do future harm, or to expose the victim's sordid past if he fails to pay—may constitute blackmail or extortion but are not robbery.

Most American states do not require that the victim actually be afraid. If the victim is not frightened, it is enough that he be aware of the impending harm. Even a slight threat is enough to constitute robbery, however, if it causes the victim to part with money or valuables.

It is sometimes said that robbery is a crime that combines both larceny and assault, but this is not strictly true. Some threats that are not sufficient to constitute an assault are sufficient for the crime to be robbery.

Another definitional problem involves thefts from persons who are unconscious because of their own acts of drinking or drug-taking. If money is simply removed from the person of such a victim, the crime is not robbery because there is no force or fear. If force is used to move the victim in order to find his money or to gratuitously inflict harm, however, as is often done in skid-row drunk rolls, the definition of robbery under most statutes would appear to be met, despite the lack of awareness on the part of the victim. If the victim is either drugged or knocked unconscious by the thief in order to secure the victim's property, it is clear that the crime is robbery.

At common law, force or fear had to precede or coincide with the theft in order for the crime to be robbery. If force or fear was used only in the escape, the crime was considered to be larceny because there was no force or fear in the taking. From the point of view of the danger involved, however, the escape creates as much risk as the taking, and the Model Penal Code (§ 222.1) and some states have dropped the requirement that force or fear must be used in the taking.

Taking from person or presence. The second common law requirement for robbery is that the taking be from the person or the immediate presence of the victim. Property is considered taken from the victim's person if it is taken from his hand or clothing or from a place where it was discarded while the victim was in flight from the robber. The victim's "presence" is considered to be his area of immediate control. Property is not generally found to be taken from the victim's person or presence if it is located some distance away. Consequently, if a victim held by a gunman directs by telephone that property in a remote warehouse be delivered to the gunman's confederate, the crime, under the traditional rule, is not robbery. Taking the real issue to be the use of force or fear, however, the Model Penal Code, the Theft Act, 1968, c. 60 (Great Britain), and a number of states have dropped the requirement that property be taken from the person or presence of the victim. This solves some problems but leaves open the question as to how close in time and place the use of force or fear must be to the taking for the crime to be robbery.

Larceny problems. Because larceny is a component of robbery, all the problems that exist in defining larceny are also problems in defining robbery. The common law rules that prevent the taking of real property or services from being larceny, for example, may also prevent the forcible taking of these things from being robbery. Similarly, since a taking that results from an erroneous but honest claim of ownership is not a theft because there is no intent to deprive the rightful owner, such a taking with force is not a robbery in most states because there is no theft.

If the older, more technical rules concerning larceny have been replaced with a single, more comprehensive concept of theft, there may be other problems. The wrongful failure to return borrowed property, for example, was not larceny under the older law but is included in many modern definitions. This raises the question as to whether a borrower who has wrongfully refused to return property commits a robbery if he threatens to beat up the owner for trying to recover his property. Similar questions may arise when the property was initially obtained by fraud or trickery and when force is used or threatened to keep the victim from regaining the property.

Unlike burglary but like other common law thefts, robbery requires that property actually be taken by the offender. If force or fear is employed but property not taken, there may be an assault or an attempted robbery, but at common law and in most states there is no robbery. The Model Penal Code and the statutes of some states have recognized that the harm to the person is the same whether the theft is completed or not, and have defined the crime to include the incomplete theft as well as the completed one.

Aggravated robbery. Many statutes provide stiffer penalties for particularly threatening robberies. Some factors that aggravate robbery in this way are use of a dangerous weapon, infliction of serious bodily harm, intent to kill, the presence of accomplices, or the choice of an especially vulnerable target such as a person on a train or bus, or an elderly person. In many of the newer criminal codes some of these same factors now serve as aggravating factors for crimes in general, as well as specific aggravating factors for robbery. This overlap sometimes raises the question as to whether the presence of an aggravating factor such as the use of a gun should result in one additional penalty or two—as aggravation under the robbery statute only, or under both the robbery statute and the general law.

Robbery is generally viewed as a crime against the person threatened. Consequently, if there is more than one victim, many states allow multiple charges to be filed and multiple sentences to be imposed.

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