Bailment. Felonious intent. fraudulent obtaining of the cheque being nothing more than mere machinery to effect his purpose (k). Where the defendant has primâ facie the legal custody of the goods, as Precedent. distinct from that of the owner, with his consent, the evidence may be rebutted, 1st, By proof that the prisoner originally obtained that possession with a felonious intention, by fraud, threats, or duress; for the law will not permit him to avail himself of his own fraud, and to set up as a defence a delivery by contract or consent, which was procured by stratagem and deceit, in order to perpetrate the offence. Determination by tort. 2dly, By proof that the privity of contract had been determined by the wrongful act of the bailee; or, 3dly, That it had been determined according to the original intent of the parties. 1st. By proof of a precedent felonious intention, or that the possession was obtained by fraud or duress. As where the prisoner hired a horse from the owner with intent to steal it (7). So where the prisoner, intending to steal the mail-bags from a post-office, procured them to be let down to him by a string from the window of the post-office, under pretence that he was the mail-guard (m). So, although the general rule of law be, that the taking must be invito domino, according to the maxim, "volenti non fit injuria,” yet if the owner consent from fear, under a reasonable apprehension of violence, the taking will be felonious (n); as where a woman gives money to preserve her chastity (o); for in such cases, where the party is not a free agent, but parts with property from fear and terror, there is no consent. But if the taking be by procurement of the owner, the maxim applies, and it is no larciny (p). But it is otherwise where the owner merely facilitates the execution of a felonious intent, as by placing himself in the way of robbers (q); or by allowing his servant to act the part of an accomplice (r). 2dly. That the privity of contract had been determined by the precedent wrongful act of the bailee. After the determination of the special contract, by any plain and unequivocal wrongful act of the bailee, inconsistent with that contract, the property, as against the bailee, revests in the owner, although the actual possession remain in the bailee (s). If a carrier break open a box delivered to him for the purpose of carriage, and steal part of the contents, he is guilty of felony, for the breaking open the box is clear and unequivocal evidence of his determination of the bailment; and the privity of contract being thus determined, it can no longer affect the question as to the commission of a felony in taking the goods (t); but if the carrier should, contrary to his duty, sell the whole package entrusted to him, without any previous breaking, or other act sufficient to determine the privity of contract, he would not be guilty of felony (u). (k) R. v. Hammon, 4 Taunt. 304. (1) R. v. Munday, East's P. C. 594. Major Semple's Case, Leach, C. C. L. 469. So where the owner of cattle hired the prisoner to drive them to a fair. R. v. Stock, Moody's C. C. 87; and see Armstrong's Case, 1 Lewin's C. C. 245. (m) R. v. Noah Pearce, East's P. C. 603. (n) East's P. C. 74. Blackham's Case, East's P. C. 555. 1 Hale, 533. East's P. C. 665. (0) Blackham's Case, East's P. C. 711. 555. (p) R. v. Daniel & others, Fost. Dis. 121. 4 Bl. Comm. 230. East's P. C. 665. R. v. Eggington & others, East's P. C. 666. (q) Norden's Case, Fost. 129. East's P. C. 666. (r) R. v. Eggington & others, East's P. C. 666. (s) Per Gould, J. Charlwood's Case, East's P. C. 691. Townsend's Case, East's P. C. 627; 13 Ed. 4, 9. (t) 1 Hale, 504; 1 Haw. c. 33, s. 5. 7; 3 Ins. 107; East's P. C. 695. (u) Ibid. See the next note. tort. Where the prosecutor sent forty bags of wheat to the prisoner, a ware- Determinahouseman and wharfinger, for safe custody, until they should be sold by the tion by prosecutor, and the prisoner's servant, by the direction of the prisoner, emptied four of the bags, and mixed their contents with other inferior wheat, and part of the mixture was disposed of by the prisoner, and the remainder was placed in the prosecutor's bags which had thus been emptied, and there was no severing of any part of the wheat in any one bag with intent to embezzle that part only which was so severed, it was held that the prisoner was guilty of larciny in taking the wheat out of the bag (r). In many instances, however, where a party is regarded as having the eustody only of goods and not a right to the possession, he may be guilty of larciny, notwithstanding the delivery to him. As in the case of a servant (y), carter (2), porter (a). So where a man, not being a general drover, but hired by the day to drive cattle to a market, sold part of them, it was held that he was guilty of larciny (b). In a later case, where the prisoner agreed for 48. to take a heifer from Y. to M., and instead of doing so sold her and embezzled the proceeds, it was held that he was properly convicted (c). (x) R. v. Brazier, cor. Holroyd, J. Nottingham Summer Assizes 1811, and afterwards by eleven of the Judges. The distinction, which has constantly been recognized, although its soundness has been doubted, seems to be a natural and necessary consequence of the simple principle upon which this branch of the law rests; and although it may at first sight appear somewhat paradoxical and unreasonable, that a man should be less guilty in stealing the whole than in stealing a part, yet such a distinction will appear to be less objectionable, when it is considered how necessary it is to preserve the limits which separate the offence of larciny from a mere breach of trust, as clear and definite as the near and proximate natures of these offences will permit; and that the distinction results from a strict application of the rules which distinguish those offences. If the carrier were guilty of felony in selling the whole package, who did the like act, so would every other bailee or trustee, and the offence of larciny would be confounded with that of a mere breach of trust, and indefinitely extended. On the other hand, in taking part of the goods after he has determined the privity of contract, the case comes within the simple definition of larciny, for there is a felonious caption and asportation of the goods of another, which stands totally clear of any bailment. It is true that the sale and delivery of the whole package by the carrier being inconsistent with the object of the bailment, determines the privity of contract; but then the question arises, what caption and asportation constitute the larciny, for these are in all cases essential to the offence. mere intention on the part of the carrier to convert the goods, unaccompanied by any overt act, whereby he disaffirms the con A tract, is insufficient; and the act of con- (b) R. v. Macnamee, Moody's C. C. (c) R. v. Jackson, 2 Moody's C. C. 32. This case, it will be observed, differed from that of Macnamee in two circumstances; the prisoner was not hired for the day but entered into a special agreement for the job, and as but one heifer was entrusted to him, which he sold, there was no separation of a part from the whole, as in Macnamee's case. In Smith's Case, Moody's C. C. 473, where the prisoner having received the prosecutor's horse to be agisted, sold it, he was held to have Bailment. Variance. Presumptive evidence. 3dly, or lastly, it may be shown that the bailment had been determined according to the intention of the parties; as, that a package delivered to a carrier had reached the place of destination, and was there delivered (d). Upon an indictment for felony, the prosecutor cannot usually proceed on two distinct felonies committed at different times, but must make his election on which he will proceed (e). Two cannot be convicted upon an indictment charging a joint larciny, unless there be evidence to satisfy the jury that they were concerned in a joint taking (f). As the caption and asportation can seldom be directly proved by an eyewitness, presumptive evidence must in general be resorted to. The most usual and cogent evidence of this nature consists in proof of the prisoner's possession of the stolen goods. The force of this presumption depends upon the consideration that the prisoner who can account for his possession of the goods, will, if that possession be an honest one, give a satisfactory account of it. The effect of this evidence is to throw upon the prisoner the burthen of accounting for that possession, and in default to raise a presumption that he took the goods. Evidence of this nature is by no means conclusive, and it is stronger or weaker as the possession is more or less recent, for the obvious reason, that the difficulty of accounting for the possession is increased by the length of time which has elapsed, during which the goods may have passed through many hands. The rule is, that recent possession raises a reasonable presumption against the prisoner (g). Where a letter been properly convicted, the prosecutor (d) 1 Hale, 504, 5; 21 H. 7. 14. But (e) Where two horses were stolen from different persons at different times, but were taken at the same time by the prisoner into a different county, it was held that the prosecutor was bound to elect. R. v. Smith, 1 Ry. &M 295. Where seventy sheep were put on Thornly Common on the 18th of June, and were not missed till November, and the prisoner was in possession of four of those sheep in October, and of nineteen other of them on the 23d of November, Bayley, J. allowed evidence of both to be given. R. v. Dewhirst, Lanc. Sp. Ass. Ap. 1825. Where numerous articles had been stolen, the Court held, that it was no ground for compelling the prosecutor to elect upon a suggestion that they were probably stolen at various times, if they might have been stolen at once; but with respect to the receiver, it appearing that they had been received at several times, the prosecutor was bound to elect; held also, that evidence of the other acts of receiving was properly admitted to show the guilty knowledge. Dunn's Case, 1 Ry. & M. 146. (f) Hempstead and Hudson were in The dicted jointly for stealing cutlery to the (g) East's P. C. 657. It is also to be carefully observed, that the mere finding of stolen goods in the house of the prisoner, where there are other inmates of the house capable of stealing the property, is insufficient evidence to prove a possession by the prisoner. Possession of stolen property three months after it had been lost, was held not such a recent possession as to put a prisoner upon showing how he came by it. R. v. C. Adams, 3 C. & P. 600. In tive evi dence. containing two bank-notes, was put into the post-office on the 17th of April, Presumpproof that a person employed in the post-office had the notes in his possession on the 21st of April was held to be sufficient to warrant a conviction under the stat. 7 G. 3, c. 50, for secreting the letter (h). Unless the posses- Possession. sion be recent, it is necessary to give strict proof of the identity of the goods, which is not so requisite where the possession is very recent; as where a man comes out of a barn with corn concealed upon his person (i); or where he is in possession of sugar which he cannot account for, just after he has left the dock, where a quantity of similar sugar is deposited (k). The having property of this nature in possession, without being able to account for it, is in some instances made a substantive offence, by local Acts made for the protection of property much exposed, and which it is difficult to identify. In other cases mere evidence of the possession of property by the prisoner, for which he cannot account, without evidence to identify it with that proved to have been stolen, is insufficient (7). And a prisoner ought not to be convicted of stealing the goods of a person unknown, upon such evidence, without proof that a felony has actually been committed (m). The fact of possession is capable of being confirmed or weakened by circumstances, particularly those of his concealment of the goods; the opportunity which the prisoner had to commit the crime; his vicinity to the place; his conduct when the charge was made; false or improbable representations to account for the possession; his readiness or unwillingness to meet the charge. Under an indictment on the stat. 7 & 8 G. 4, c. 29, s. 47 (n), the prosecu- Embezzletor must prove (o), 1st, That the defendant was his servant or clerk (p); ment. 2dly, That he received the goods or money specified; 3dly, On account of his master; 4thly, That he embezzled them. The goods or money specified.-This proof requires, it seems, the same particularity as upon an indictment for larciny. Upon a charge of em Cockin's Case, 2 Lewin's C. C. 235, in the case of a possession 20 days after the theft, the evidence was left to the jury. See the observations on such evidence by Sir G. Lewin, Ib. (h) Ibid. (i) Ibid. (k) Ibid. (1) East's P. C. 657; 2 Hale's P. C. 290. (m) 2 Hale's P. C. 290; 4 Comm. 352. (n) Which enacts, that if any clerk or servant, or any person employed for the purpose, or in the capacity of a clerk or servant, shall, by virtue of such employment, receive or take into his possession any chattel, money, or valuable security for or in the name, or on the account of his master, and shall fraudulently embezzle the same, or any part thereof, every such offender shall be deemed to have feloniously stolen the same, &c. (0) See Ld. Ellenborough's observations, R. v. Johnson, 3 M. & S. 548. (p) See R. v. Squire, 2 Starkie's C. 349. The statute is not confined to clerks and servants in trade. A person employed as clerk by the overseers of Leeds was held to be within the statute. 2 Starkie's C. 349. The statute applies to female as well as to male servants. R. v. Smith, by Proof of embezzle ment. bezzling so many pounds, it is not sufficient to prove an embezzling of the same number of bank-notes to the same amount (q). Upon a charge of embezzling the sum of 17. 11 s. it was held to be insufficient to prove that so much was paid, the party who paid it being unable to state in what way it was paid (r). 3dly, On account of his master (s).—It is not sufficient under this statute to prove a delivery to the servant by the master himself (t); but it is sufficient if he receive the money from a customer, although it was given by the master to the customer in order to try the servant's honesty (u). 4thly, The embezzlement.—It is not sufficient, in support of a charge of this nature, to prove a general deficiency to the amount stated, upon a balance of account, without fixing upon some particular sum of money which has been received by the prisoner, and evidence to show that he has embezzled it. Evidence of this nature generally consists in showing that the prisoner omitted to make the usual entry of the receipt of the money in the book or account in which it ought to have been entered (x); in his using artifice and practices to prevent a discovery of the deficiency, or his denial of the receipt of the particular sum (y). By the late st. 7 & 8 G. 4, c. 29, s. 48, three distinct acts of embezzlement (z), committed against the same master, may be included in the same indictment, provided they have been committed within the space of six calendar months from the first to the last of such acts. The embezzlement may be alleged to be of money, without specifying any particular species of coin or valuable security, and such allegation shall be sustained if the offender shall be proved to have embezzled any amount, although the particular species of coin or valuable security of which such amount was composed, shall not be proved; or if he shall be proved to have embezzled any piece of coin or valuable security, or any portion of the value thereof, although such piece of coin or valuable security may have been delivered to him in order that some part of the value thereof should be returned to the party delivering the same, and such part shall have been returned. Where a prisoner, having received money in Surrey, denied the receipt of it the same day to his master in Middlesex, and there was no evidence (q) R. v. Lindsey, 3 Burn, by Chetw. 189. R. v. Furneaux, Ibid. But an indictment was held to be good, which alleged a receiving of 91. 18s. 9d. without showing how the same was made up. R. v. Crighton, Summer Ass. 1803, by all the Judges. 3 Burn, by Chetw. 190. But see the provisions of the late stat. 7 & 8 G. 4, c. 29, s. 48. (r) R. v. Furneaux, O. B. Sept. 1818, cor. the Recorder, and afterwards by the Judges. Russ. & Ry. C. C. L. 335. (s) Where the servant of the owner of a stallion was instructed not to receive less than a certain sum for each mare; held, that his receiving less sums and converting them to his own use, was not an embezzlement, not being received by him by virtue of his employment. R. v. Snowley, 4 C. & P. 300. Qu. (t) Peck's Case, cor. Park, J. Staffordshire Summer Ass. 1817. (u) R. v. Whittingham, 2 Leach, 912. Headges's Case, Leach, 1033. See Bull's Case, cited in Bazeley's Case, 2 Leach, 841. R. v. Foot, Bridg. Summer Ass. 1818, cor. Graham, B. and afterwards by the Judges. (x) See R. v. Squire, 2 Starkie's C. 349. Where the party had charged himself with the receipt of the money in the books weekly, but had neglected to pay it over, it was held to be no felony. R. v. Hodgson, 3 C. & P. 423. (y) R. v. Hobson, East's P. C. Add. xxiv. 2 Russ. 1238. Taylor's Case, 3 B. & P. 596. 2 Leach, 974. (z) Where the indictment contained three counts for acts of embezzlement within six months, the Court held, upon motion by the prisoner, that he ought to be furnished with a particular of the charges, but that the proper course was to apply to the prosecutor, and that if he refused, the Court, upon affidavits, would grant an order, and put off the trial. R. v. Hodgson, 3 C. & P. 423. |