case the king vers Frances and other before all the judge at sergeant inn on a  special verdict in a indictment for a robbery on the highway the word then and  there immediate do not sufficient ascertain the time to find the prisoner  guilty Str Cas tempt hard p SC dougl at the assize hold at well for the county  of Somerset on the saint of July Geo before chief baron Reynolds John Frances  and five other be indict for a robbery on the highway upon one Samuel Cox and  the chief baron be doubtful upon the evidence whether the offence amount to  robbery direct it to be find special and it be find that Samuel Cox travel on  the highway towards Somerton fair see the prisoner in the road stand in  company together save that one of they be lie in the road upon the ground Cox  pass by they but one of the prisoner call to he and desire he to change half a  crown that they may give something to a poor scotchman meaning the person that  be lie upon the ground that thereupon Cox come back and put his hand in his  pocket intend to pull out money to change the half crown pull out some piece  of gold videlicet four moidore and a Portugal piece value S that Cox have the  piece of gold in his hand the defendant John Frances he and all the other  prisoner be in company together gentle strike his hand whereby the piece of  gold fall on the ground that Cox get off from his horse and say that he will  not lose his money so that Cox offer to take up the piece of gold then lie on  the ground in his presence the prisoner swear that if he touch they they will  knock out his brain whereby Cox be comens er p put in bodily fear of his life  and desist comens from take up the say piece of gold and the jury further find  that the say prisoner then and there immediate take up the say piece of gold  and road off with they that Cox immediate pursue and road after they about  half a mile and then the prisoner strike he and his horse and swear that if he  pursue they any far that they will kill he upon which Cox cease to continue  his pursuit any far et si super totan means c upon this special verdict the  justice of the king bench be doubtful whether the verdict have find the fact  so certain that they can determine it to be a robbery and therefore they  desire the opinion of the other judge who meet at sergeant inn hall and it be  argue by counsel for the crown and for the prisoner and upon consideration the  judge seem general to think that the find of the jury be not so plain and  certain that the court can pass sentence of death upon the prisoner it have be  insist on that although the prisoner do not at first use force but gentle  strike Cox hand upon which he drop the gold and so there be no put he in fear  yet what be find afterward seem to find a fact that have all the essential of  that offence which the law call robbery which be a forcible or violent take of  good from the person of another put he in fear judge foster in his crown law  say that the want of this circumstance alone namely the be put in fear ought  not to be regard I be not clear continue the judge that that circumstance be  of necessity to be lie in the indictment so as the fact be charge to be do  violent et contra will I know there be opinion in the book which seem to make  the circumstance of fear necessary but I have see a good ms note of a opinion  of Lord holt to the contrary and I be very clear that the circumstance of  actual fear at the time of the robbery need not to be strict prove c p hale p  c Bl Com hawk p c in note Inst Ha wk p c that take good from his presence be  always hold to be a take from his person if by force and put he in fear and  therefore if a man have his horse or coat by he and a thief by force put he in  fear take it away it be robbery I hawk p c or if he take cattle by force out  of a field the owner be present and put in fear hawk p c then lie the first  part gentle strike his hand out of the case it be afterward find that the  money be lie on the ground in his presence and then the prisoner swear that if  be touch it they will knock his brain out upon which comens be put in fear he  desist and they take it that when they gentle strike the money out of his hand  he do not lose the property but the property continue in Cox and the money be  his still though lie on the ground and then when the prisoner by threat which  put he in fear force he to desist from take it up and they immediate take it  up this be a take from his person be a take of his good by force in his  presence and put he in fear and though it be not find that they take it in his  presence yet if it be all one continue act the force the put in fear and the  take it will be sufficient for the case Stamf p c Crompt just Inst where it be  say if a thief assault a true man in the highway to take his purse and he in  flight to escape throw his purse into a bush or his hat fall off and the thief  perceive it take up the purse or hat it be robbery be allow to be good law  because as Lord coke say it be at the same time whence it be infer that here  it be find that when Cox by force and terror desist from take up his money and  the prisoner then and there immediate take it up that be sufficient to denote  the time of take to be one and the same with that in which the money be force  from he by those threat which make he desist from take it up but the judge  seem unanimous to agree that the case be to be consider upon the special  verdict and that be not to be make good by intendment or construction it be  not deny but that if a thief set upon a man to rob he and he throw away his  money or his good be near he and in his presence and be force away by terror  and the thief take they it will be robbery and therefore here possible it may  have be well if the jury have find that when Cox desist the prisoner at the  same time or without any intermediate space of time or instant take it up but  the word immediate have great latitude and be not of any determinate  signification it be in dictionary explain by quickly quickly in writ  returnable immediate it have a large construction as soon as convenient it can  be do in Mawgridges Kel saint Tr p a case so in the special verdict in Onebys  case the word immediate be use four different time to different purpose Str  Lord raym saint Tr p it be twice mention but with word add to ascertain comens  it as without intermission in a little space of time c in the StatuteSt  Elizabeth c S Vet Intr   Ent raze Ent clift Ent her pl a Elizabeth it be  direct that the word in the statute be except the same person or person so rob  shall with as much convenient speed as may be give notice c notice be give as  soon as convenient may be in the plead that be usual express by inimediate so  that then and there immediate do not necessary ascertain the time but leaves  it doubtful beside it be proper to take comens er p notice that in this  verdict the word then and there immediate be not couple in the same clause or  sentence with the word precede but it be a distinct clause and a separate find  the court of king bench pursuant to this opinion of the majority of the judge  hold that the defendant ought to be discharge of this indictment then a  question arise whether the defendant ought to be discharge out of custody it  be hold that they shall not but that they shall be remand for though no  robbery be find by the verdict yet it appear that they be guilty of grand  larceny for which no judgement can be give upon this indictment for his differ  from burglary and other case where the prisoner may be acquit of the burglary  and find guilty of the felony but here the offence be lie to be a robbery in  take a mask and that be the only doubt of the jury the court can give  judgement against they upon this indictment but must discharge they as to it  and remand they in order to be try upon a new indictment for the grand larceny