The Lowdown on Common Law Robbery: The Definitive Guide

What is Robbery at Common Law?

Common law robbery is essentially the common law version of simple robbery. A common law robbery occurs when one person unlawfully takes personal property from another, by threat or intimidation of any kind, an intention to permanently deprive (or temporarily) the other person of the property taken, and that the taking was by force or threats of violence, which is not a well defined term, but which courts have held to include any taking that does violence or that, though not violent itself, is accompanied by the reasonable apprehension of injury.
Criminals often find themselves stuck between the crimes of theft and robbery, in that robbery proscribes the same conduct as theft plus the additional element of threatening the victim of the theft. It is for this reason that robbery is much more serious than theft, since a robbery is a theft where the circumstance of the threat adds a level of danger and severity to the crime – i.e., a robbery involves the same factors as theft, plus the threat of violence.
A further aggravating factor is that robbery is always a crime against persons rather than property since some type of confrontation between the thief and the victim is required. For these reasons, the criminal offense of robbery is much more serious than a crime that simply prohibits theft.
The term "robbery" comes from Latin robare that means "to seize, take away, carry off." The Modern Penal Code definition of robbery was based on the common law definition. The origins of robbery can be traced back to the Romans. Many early historical accounts recount of how the Romans robbed their enemies and even dominated later periods of history through stealing their enemies’ valuables and money. Robbery became codified in common law in England becoming a felony. Like most criminal offenses, robbery can be traced back to the common law. Under the common law, robbery was defined as: Robbery is tresspassory taking of the personal property of another from his/her immediate presence by force or putting in fear. Forces means physical violence utilized against the victim or the use of a threat that puts the victim in fear of injury . As you can see, this definition is very similar to the current Model Penal Code definition of robbery and takes into account the same principles and elements. Interestingly, in spite of its long history, robbery was not very common in the 17th and 18th centuries. In fact, it was so uncommon that most English law courts refused to punish those convicted of robbery.
The first real penal codes punishing robbery we’re passed in the United States during colonial times, specifically in the area that became Pennsylvania. The first statute relating to robbery in the United States looked a lot like a modern statute and made it a felony to "steal from the person, goods and chattels, money, or any valuable thing." It further went on to specify the punishment of the crime depending on its severity: If a robbery is committed by one great on another, and the party be put in bodily fear, or are wounded in his defense, or in pursuit of the property, if the wounding be the act of the offender, the offender shall suffer death.
If any person, being armed, or having his accomplice armed with any offensive weapon, shall by force and violence break and enter into any dwelling-house, barn, stable, store-house, shop, warehouse, barn or other building, with intent to steal, or shall steal therein, or shall break and enter the party’s close or barn, and there commit a robbery, or do any other injury, he shall suffer death.
Interestingly, in spite of its long history, robbery was not very common in the 17th and 18th centuries. In fact, it was so uncommon that most English law courts refused to punish those convicted of robbery.
This history is important because it reveals how the law is sometimes reluctant to punish punishable behavior. In England, where common law began, the courts would simply refuse to prosecute or convict those accused of robbery, simply because they could not reconcile present-day violence with the mostly tame code prescribed by the common law.
Furthermore, this lengthy history demonstrates how the law has evolved over time. Its evolution is most notable through the replacement of the common law code with a penal code which now contains statutes which more accurately reflect the modern definition of robbery, and the more expansive nature of modern criminal law.

Essentially the Elements of CRL

Common law robbery is a type of theft that has been around for several centuries. The exact definition has varied somewhat but the basic definition remains fairly consistent. Robbery by force or fear is defined as the unlawful taking of the property of another from his or her person by means of force or fear. The taking must be from the person of the victim or in his presence and under his immediate control. Key to the charge of robbery by force or fear is that the taking of the property must be done intentionally with the intent to permanently deprive the owner of the property. In other words, the defendant must have intended to permanently deprive the owner of his property.
While robbery by force or fear is defined as taking property from the person of another, in many circumstances it is charged where the defendant has taken property in the presence of the victim but not from the actual person of the victim. To meet the requirements of the statute the taking does not have to be from the actual person of the victim but instead can be from his immediate presence. It is settled law however that larceny by trick, i.e. obtaining possession over property by means of some trick or deceit will not fulfill this element of the charge. In those circumstances where the trick is persuading the victim to relinquish control of the property possession has not been obtained from the actual person of the victim but rather by trick and deceit which was mislead to the victim into believing that it was proper to turn over the property.
The key element of the charge of robbery by force or fear is force or fear. The use of actual force in a robbery charge is not required and indeed much of the time the robbery charge is prosecuted where there is not actual force applied. To meet the element of force or fear the conduct of the defendant must legally raise the fear but not actual physical force must be used.

Robbery v. Other Theft Offences

Despite common beliefs, robbery is not just a theft crime – it touches on assault, and there are circumstances under which it is significantly different from an act of burglary: Proving that there was a confrontation with force or fear involvement is of paramount importance in a common law robbery case. Properly defined under North Carolina law, common law robbery is essentially larceny with "any ongoing or threatening use of violence against the person." That is not larceny, because it also requires elements of assault or use of fear. And it is different from burglary IV, because that does not include a taking of property. Thus, common law robbery is very similar to armed robbery. The only dramatic real difference is the element of violence or fear; an unarmed robbery can theoretically involve no threat or use of violence (according to some definitions). However, many judges will not give a common law robbery sentencing cap (prison time limit) unless there is an assault or use of threat of violence. So the issue of whether or not your possible punishment maximum (just a couple of months for a ple, for instance) is important. You will want to make a good argument for the aggravating factor to avoid problems in the future. One final note – while robbery and breaking and entering (also known as burglary) both involve taking something that does not belong to you by unlawfully entering a building, burglary IV does not require any ongoing or threatening use of force anywhere along the chain of events. For instance, if you are locked out of your house and want to get into the garage through a window, but the actual taking does not involve either force or threat of force, this is a breaking and entering and not a robbery.

Potential Defenses in Common Law Robbery Cases

Common law robbery occurs in any place where the crime of robbery is not specifically enumerated in a statute. Just because robbery is not technically listed in a criminal statute does not make it any less serious of an offense. In fact, common law robbery is classified as a third-degree felony, the same as aggravated assault; and, like aggravated assault, common law robbery carries with it significant penalties, including imprisonment for up to ten years with a minimum sentence of three years. A competent and effective lawyer should be able to identify the best legal defenses against these serious allegations.
Lack of Intent
It is well-known in the legal profession that the burden of proof for any criminal offense rests exclusively on the prosecutor. Although this is often purely an academic exercise, it is the very foundation of our criminal justice system. Therefore, the State must prove every single element of the crime beyond a reasonable doubt; and, as a fundamental part of its case, the State must prove the defendant had the requisite state of mind or intent to commit the crime charged. In the context of common law robbery, this means the State must show that the defendant intended both to use force or intimidation and to commit theft. If the State cannot show the defendant intended to do both, the defendant is entitled to an acquittal. Think about the mistake of friends who think they can "borrow" their friends’ Xbox or laptop without telling them. This may very well support a misdemeanor charge of Criminal Trespass, but it would not support a felony robbery charge in common law.
Mistaken Identity
In the age of technology, mistaken identity is a more common mistake than any of us would admit. This is especially true when it comes to a defendant’s photograph. All too many clients have admitted to their attorney that they were not even in the State of the alleged robbery or at the alleged location; or that the individual in the location was actually an acquaintance or stranger, and not the defendant. Fortunately, since the burden of proof lies with the State, the defendant does not have to prove his or her innocence. Instead, the State must prove guilt beyond a reasonable doubt. This means that the State must present enough evidence to convince everybody who is listening that the defendant is the person who committed the crime . Therefore, the State cannot simply say that eyewitnesses identified the defendant by photograph, only to have the defendant deny his or her picture was the one shown. Instead, to be admitted in evidence before the jury, this photograph must be first authenticated by the officer or detective who took the photograph, and whose name should be included in the police report. This provides an opportunity for the defense to challenge the officer’s ability to identify the defendant later in front of the jury, by cross-examination, to determine whether the officer made any errors in the identification as well. Once the photograph is admitted into evidence, the client can take the opportunity to testify before the jury that he or she is not the person depicted in the photograph. This is exactly what we mean by the burden of proof. The State must prove every single element of the crime beyond a reasonable doubt, and that includes the identity of the person being charged in the photograph.
Force or Intimidation
There are two ways in which a person can commit robbery: (1) by using force to take another persons property, or (2) by using or threatening to use bodily injury or physical harm. To some, this might seem like one and the same. This is true to an extent. For example, if the defendant pulls a gun on a victim, there is typically no ambiguity about whether he or she used a dangerous weapon to threaten bodily injury or physical harm. However, there are several places on the continuum between the placement of a defendant’s fist and a deadly weapon like a gun or knife; and, when a fist is used, how can a juror ever be certain whether it was a threat of physical harm or bodily injury? The answer is: compelling testimony from the person who was actually on the receiving end of the defendant’s fist. This is that compelling testimony in the continuum we referred to earlier. On one end, the person is struck and suffers a bruise. On the other end, the person suffered a concussion or facial laceration. In the mean time, the further down the scale we go, the less likely the person was intentionally threatened with any physical harm. Good attorneys know how to question jurors during jury selection about their attitudes and biases toward certain types of violence. One point of that discussion is to identify individuals who may have very strong, visceral reactions towards shaken baby syndrome or simple assaults; and how those reactions impact the ability of those individuals to be fair and impartial.

Case Examples and Legal Rulings

A review of case studies and legal precedents is necessary to fully understand what this crime is and how it is determined by the court. The Delaware Supreme Court decision in the case of Jozefowicz v. State, 513 A.2d 259, 262 (Del. Sup. Ct. 1986), set the foundation for establishing the basic elements of robbery which has been widely cited. Robbery, the Court declared, "is a theft effected by violence or threat of violence." The Court also stated, ‘robbery is much more than a crime of mere theft with a threat. Its essence lies in the displacement of human safety and liberty by fear." The Court of Appeals for the Seventh Circuit, in U.S. v. Monroy, 627 F.2d 1024, 1025 (7th Cir. 1980), clarified the violence element of robbery by holding that "either a threat or use of violence is sufficient to sustain a conviction for robbery." In U.S. v. Morrow, 731 F.2d 251, 255 (4th Cir. 1984), the Court of Appeals of the Fourth Circuit held that the taking element of robbery means "the unlawful deprivation of another’s property by either ways foregoing an interest to which the property is justly entitled or obtaining actual possession of that property." The New York Court of Appeals, in People v. Saxon, 24 N.Y.2d 549, 550, 247 N.E.2d 947, 308 N.Y.S.2d 481 (1969), focused on the how the words ‘forcibly’ and ‘violently’ are used in describing the crime: "We held in People v. Johnson, 24 N.Y.2d 399, that the statute conferred substantial benefit to the prosecution in retaining the requirement of ‘forcibly’ committing the larceny and as an element of the common law robbery. In doing so, we distinguished between the two terms, to wit, that violent takes by force referred to actual physical force while forcible means "to employ or threaten to employ at any given time some type of physical force to create or complete the taking." Ordinarily, force must be sufficient to overcome resistance of the victim. The Maryland Court of Special Appeals, in Rice v. State, 25 Md. App. 225, 226, 334 A.2d 107, 108 (1975) specified that "the taking required by the robbery statute is not the ‘single act of acquiring the property from the victim in the first instance but rather the entire act of taking or obtaining possession and carrying away, even if at second hand, after the outer limits of the victim’s control have been transgressed.’" The California Court of Appeal, in People v. Miller, 49 Cal. App. 3d 215, 219, 122 Cal. Rptr. 908, 912 (1975), and the Ohio Court of Appeals, in State v. Polly, 38 Ohio App. 2d 75, 76 (1974), both held that the term ‘taking’ means the acquisition of the property from the victim in a manner that deprives the victim of the property.

Penalties and Sentencing for Common Law Robbery

Typically, a conviction for common law robbery results in a substantial jail sentence. For example, in North Carolina, the "presumptive" punishment for robbery is from 44 to 65 months in prison. However, as with many types of criminal charges, the sentence you could receive for a robbery conviction depends on your prior criminal record. If your prior record level is I or II, then the "mitigated range" is the presumptive sentence. On the other hand, if your prior record level is VI, the "mitigated range" is 77-102 months.
Given the presumption of such a long sentence, many people facing a charge of robbery may be eligible for a plea bargain to a lesser offense. A deferred prosecution , which allows for the possibility of alcohol screening and treatment instead of a criminal record, is also an option under certain circumstances. A robbery charge can also be reduced to a property crime such as larceny or shoplifting.
North Carolina also considers robbery to be a "violent" crime, so it is possible that the fact of a conviction on this type of charge will keep you from owning a gun or voting.
Nonetheless, the primary long-term effect of a robbery conviction is the presence of the conviction on your criminal record. This can potentially affect your ability to get jobs, leases, student loans, and other forms of financial aid. In North Carolina, a robbery conviction cannot be expunged (maximally sealed).