Where property has been left by a passenger in a train it seems always to have been treated as theft if a servant of the railway company appropriated it instead of taking it to the lost property department of the railway service. R. v. Pierce (1852), 6 Cox C.C. 117.

In R. v. Moore (1860), L. & C. 1, 30 L.J.M.C. 77, the facts were that a customer had dropped his purse containing a bank note in a hairdresser's shop and the hairdresser had picked it up. The jury found that at the time he picked it up he did not know nor had he reasonable means of knowing who the owner was, but that he afterwards acquired knowledge of who the owner was and then converted the bank note to his own use; that he intended when he found the note to take it to his own use and deprive the owner of it, whoever he was; and that he believed when he found it that the owner could be found. It was held that he was rightly convicted of larceny.

The proper question to be put to the jury is not whether they are satisfied that the prisoner could have found the owner, but whether they are satisfied that the prisoner himself believed that he could have found the owner. R. v. Knight (1871), 12 Cox C.C. 102.

If there is any mark upon the property by which the owner may be traced, and the finder instead of restoring the property converts it to his own use such conversion will amount to theft. R. v. Pope (1834), 6 C. & P. 346; R. v. Mole (1844), 1 C. & K. 417; R. v. Preston (1851), 2 Den. 353.

An unqualified instruction to the jury on a prosecution for theft against the finder of goods, that the pledging of same by him constitutes theft, is a misdirection entitling the accused to a new trial. Whether or not the conversion by the finder is theft depends upon the attendant circumstances, such as the class of goods, the place of finding, the interval between the finding and conversion, and the probability of being able to discover the owner. R. v. Slavin (1900), 7 Can. Cr. Cas. 175, 35 N.B.R. 388.

Property left by mistake.]-In R. v. West (1854), Dears. 402, 24 L.J.M.C. 4, a purse with money in it was left by mistake on the prisoner's stall in a market, and on it being pointed out to her by a stranger, she took possession of it, but denied all knowledge of it when the customer returned to claim it; the jury found that when the prisoner took it she intended to appropriate the purse to her own use, and did not then know the owner. The court in that case drew a distinction between "left" property and "lost" property, and it was therefore unnecessary to ask the jury whether the prisoner, when she took the purse, reasonably believed the owner could be found. The prisoner was not justified in treating the purse as lost, and as she took it with intent to appropriate to her own use a conviction for larceny was supported.

Presumption from recent possession.]—Although the mere fact of possession may not suffice to raise a presumption of guilt by reason of lapse of time, it may be considered when combined with other circumstances, such as a misrepresentation by the prisoner as to his occupation, a sale of the stolen articles at price much below their value. R. v. Starr (1876), 40 U.C.Q.B. 268.

The recent possession of stolen goods is recognized by the law as affording a presumption of guilt, and therefore, in one sense, is a presumption of law, but it is still, in effect, a mere natural presumption; for, although the circumstance may weigh greatly with the jury, it is to operate solely by its natural force, for a jury are not to convict unless they be actually convinced in their consciences of the truth of the fact. 2 Starkie on Evidence 684; R. v. Smith (1825), Ryan & Moody N.P. Cases 295.

The question of what is or is not a recent possession of stolen property is to be considered with reference to the nature of the article stolen; there

fore where two ends of woollen cloth in an unfinished state were lost and were found in the possession of the prisoner two months after their being stolen, and were still in an unfinished condition, it was held that their possession by the prisoner was recent enough to raise a presumption against him of having stolen it. Rex v. Partridge (1836), 7 C. & P. 551. Mr. Justice Patteson said in the same case: "If the articles are such as pass from hand to hand readily, two months would be a long time; it is a question for the jury."

In Reg. v. Langmead (1864), 9 Cox C.C. 464, it was held by the Court of Criminal Appeal (Pollock, C.B., Martin, B., Byles, Blackburn, and Mellor, JJ.,) that it is a presumption of fact and not an implication of law, from evidence of recent possession of stolen property unaccounted for, whether the offence of stealing or of feloniously receiving has been committed. Blackburn, J., there said: "If a party is in possession of stolen property recently after the stealing, it lies on him to account for his possession, and if he fails to account for it satisfactorily, he is reasonably presumed to have come by it dishonestly; but it depends on the surrounding circumstances whether he is guilty of receiving or stealing. Whenever the circumstances are such as render it more likely that he did not steal the property the presumption is that he received it."

Pollock, C.B., in the same case said: "All that appears is that the prisoner was found very recently in possession of the stolen sheep. That, primâ facie, is evidence of stealing rather than of receiving, but in no case can it be said to be exclusively such, unless the party is found so recently in possesssion of stolen property and under such circumstances as to exclude the probability of receiving-as where a party is stopped coming out of a room with a gold watch which has been taken from the room; but if he has left the room so long as to render it probable that he may have received it from someone else, then it may be evidence either of stealing or of feloniously receiving."

It has been held that the possession of stolen property consisting of an axe, a saw and a mattock three months after it was lost is not such a recent possession as to put it upon the prisoner to shew how he came by it, unless there be evidence of something more than the mere fact of possession at such distance of time after the loss. R. v. Adams (1829), 3 C. & P. 600; 2 Russell on Crimes (1896), 6th ed. 288.

Upon a charge of theft of merchandise in bulk from a store, evidence of the finding at the defendant's house of the stolen goods and of false keys fitting the store doors, and of the fact that the goods were in a place exposed for sale at the time of the alleged theft and had not been sold, is sufficient to place the onus upon the defendant of accounting for his possession. It is not necessary for the Crown under such circumstances to prove that the goods could not have been stolen by some one else while exposed for sale, or that the storekeeper had not given them away. A proper instruction to the jury in such a case is to decide firstly whether the goods were stolen; if so, then to decide whether the prisoner's possession was exclusive and, if they found affirmatively on both questions, they might convict unless the accused accounted for the possession. R. v. Theriault (1904), 8 Can. Cr. Cas. 460, 11 B.C.R. 117.

Where a person charged with a theft has at the time of the finding of the goods in his possession given a reasonable account of the manner in which he became possessed of them, the presumption arising from his recent possession is rebutted, but semble, the same result does not of necessity follow from a like statement first made by the accused in his evidence given on his own behalf at the trial. Regina v. McKay (1900), 6 Can. Cr. Cas. 151.

Giving a reasonable account of possession.]-"If a person in whose possession stolen property is found give a reasonable account of how he came

by it, and refer to some known person as the person from whom he received it, the magistrate should send for that person and examine him, as it may be that his statement may entirely exonerate the accused person and put an end to the charge; and it also very often may be that the person thus referred to would become a very important witness for the prosecution by proving, in addition to the prisoner's possession of the stolen property, that he has been giving a false account of how he came by it." R. v. Smith (1845), 2 C. & K. 207; R. v. Crowhurst (1844), 1 C. & K. 370; R. v. McKay (1900), 6 Can. Cr. Cas. 151.

It is a question in each case, under the particular circumstances of the case, whether it is necessary to call the third party vouched by the prisoner. R. v. Ritson (1884), 15 Cox C.C. 478; R. v. Harmer (1848), 2 Cox C.C. 487.

Recent possession of stolen property is evidence either that the person in possession stole the property or that he received it knowing it to be stolen, according to the circumstances of the case. So, where goods have been stolen from a dwelling house, if the defendant were apprehended a few yards from the outer door with the stolen goods in his possession, there would arise a violent presumption of his having stolen them; but if they were found in his lodgings some time after the larceny, and he refused to account for his possession of them, this together with proof that they were actually stolen, would amount not to a violent, but to a probable presumption merely. Archbold's Crim. Pleading (1900), 312. But if the property were not found recently after the loss, as for instance not until sixteen months after, it would be but a light or rash presumption and entitled to no weight. Anon (1826), 2 C. & P. 459; R. v. Adams (1829), 3 C. & P. 600; R. v. Cooper (1852), 3 C. & K. 318.

Section 993 of the Criminal Code provides that when proceedings are taken against any person for having received goods knowing them to be stolen, or for having in his possession stolen property, evidence may be given, at any stage of the proceedings, that there was found in the possession of such person other property stolen within the preceding period of twelve months, and such evidence may be taken into consideration for the purpose of proving that such person knew the property which forms the subject of the proceedings taken against him to be stolen: Provided, that not less than three days' notice in writing has been given to the person accused that proof is intended to be given of such other property, stolen within the preceding period of twelve months, having been found in his possession; and such notice shall specify the nature or description of such other property, and the person from whom the same was stolen.

On a charge of theft, where the circumstances were such as to warrant the jury in drawing an inference of guilt from the prisoner's possession of one of the stolen articles, the judge's comment in his charge that, if the defendant's witness is disbelieved, the prisoner has not given a "satisfactory account" of how he came into possession of the article is not comment on the failure of the accused to give evidence prohibited by the Canada Evidence Act. The King v. Burdell, 10 Can. Cr. Cas. 365.

Proving the intent.]-To demand and obtain possession of goods from a debtor for the purpose of holding them as security for a debt actually owing, is not a demand with menaces made with "intent to steal," although such possession is obtained by means of an unjustified threat of the debtor's arrest made by the creditor's agent without any honest belief that the debtor was liable to arrest. R. v. Lyon (1898), 2 Can. Cr. Cas. 242 (Ont.).

Evidence of other similar criminal acts may be relevant in charge of theft if it bears upon the question whether the taking was designed or accidental. R. v. Collyns (1898), 4 Can. Cr. Cas. 572. And see note under ɛec. 259 on the relevancy of other criminal acts to prove intent.

Where such evidence is relevant to the issue, it is not necessary for its admission in evidence that it should establish conclusively that the accused had been guilty of such other criminal acts, but it will be received if it tends to shew that the accused had been so guilty. R. v. Collyns, 4 Can. Cr. Cas. 572.

Where the prisoner, being the manager of a branch store for the sale of goods supplied by the factory of his employers, arranged with the checker at the factory to load certain goods on a waggon going to the branch store without charging them or keeping the usual check on them which his employers' system required, and had the goods delivered to a customer of his branch without charging the customer, the prisoner stating that for the benefit of his employers he had merely postponed the charging of the goods in order to give the customer a longer credit than was customary and to so retain the customer's trade; these facts will constitute "theft" under the Code if credence is not given to the prisoner's explanation. R. v. Clark (1901), 5 Can, Cr. Cas. 235 (Ont.). The goods having been taken by the prisoner with knowledge that his doing so was contrary to the employers' rules and regulations and with intent to deprive the owner thereof, the taking was fraudulent and without colour of right within Code sec. 347. Ibid.

Attempt to steal.]-Section 72 declares that one who, having an intent to commit an offence, does an act for the purpose of accomplishing his object is guilty of an attempt to commit the offence intended, whether under the circumstances it was possible to commit such offence or not. If, with an intent to steal, the accused puts his hand into an empty pocket, he may be convicted of an attempt to steal, although he could not have committed the complete offence of theft. R. v. Ring (1892), 17 Cox C.C. 491; R. v. Brown (1890), 24 Q.B.D. 357; overruling R. v. Collins (1864), L. & C. 471, contra. See as to attempts to commit indictable offences secs. 570-571.

Embezzlement.]-The term "embezzlement" is commonly used to define that class of theft, the essential elements of which are (1) that the defendant was an agent, clerk, servant, or bailee; (2) that by virtue of his position or employment he received the money or property of his principal; (3) that he converted it to his own use intending to steal it. Under the Code the word embezzlement is no longer used to distinguish that class of theft but special provision is made defining theft by agent (sec. 355) misappropriation of property held in trust (secs. 356 and 357) and providing varying maximum penalties for different classes of theft (secs. 358-388).

Extradition.]-Embezzlement; larceny; receiving any money, valuable security, or other property, knowing the same to have been embezzled, stolen, or fraudulently obtained; fraud by a bailee, banker, agent, factor, trustee, or director or member or officer of any company, made criminal by the laws of both countries, are extraditable offences under the Convention of 1889 with the United States of America.

348. No factor or agent shall be guilty of theft by pledging Agent or giving a lien on any goods or document of title to goods pledging entrusted to him for the purpose of sale or otherwise, for any theft when. goods not sum of money not greater than the amount due to him from his principal at the time of pledging or giving a lien on the same, together with the amount of any bill of exchange accepted by him for or on account of his principal.

Servant when not guilty of theft.

Theft of

things seized

under pro

cess of

law.

Killing

animals.

Theft of electricity.

Theft by

owner.

2. Any servant, contrary to the orders of his master, taking from his possession any food for the purpose of giving the same or having the same given to any horse or other animal belonging to or in the possession of his master, shall not, by reason thereof, be guilty of theft. 55-56 V., c. 29, s. 305.

349. Every one commits theft and steals the thing taken or carried away who, whether pretending to be the owner or not, secretly or openly, takes or carries away, or causes to be taken or carried away, without lawful authority, any property under lawful seizure and detention by any peace officer or public officer in his official capacity. 63-64 V., c. 46, s. 3.

Seizure.]-The ordinary and natural meaning of the word "seizure" is a forcible taking possession. Johnston v. Hogg, 52 L.J.Q.B. 343, 10 Q.B.D. 432.

Punishment.]-The limit of punishment is seven years' imprisonment, except where the offender has been previously convicted of some of the offences declared by the Code to be "theft," in which case the punishment for this offence may be 10 years' imprisonment. Section 386.

350. Every one commits theft and steals the creature killed who kills any living creature capable of being stolen with intent to steal the carcass, skin, plumage or any part of such creature. 55-56 V., c. 29, s. 307.

Animals as the subject of theft.]-See sec. 345.

Cattle stealing and fraudulent appropriation of cattle.]-See secs. 369 and 392.

Stealing domestic animals.]-See sec. 370.

Wilful injury to animals.]—See secs. 510 (b), 536-538.

351. Every one commits theft who maliciously or fraudulently abstracts, causes to be wasted or diverted, consumes or uses any electricity. 57-58 V., c. 39, s. 10.

This section is adapted from the Imperial statute 45-46 Vict., ch. 56, sec. 23.

352. Theft may be committed by the owner of anything capable of being stolen against a person having a special property or interest therein, or by a person having a special property or interest therein against the owner thereof, or by a lessee against his reversioner, or by one of several joint owners, tenants in common, or partners of or in any such thing against the other persons interested therein, or by the directors, public officers or members of a public company, or body corporate, or