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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 sec. 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 goods not entrusted to him for the purpose of sale or otherwise, for any theft when. 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

of an unincorporated body or society associated together for any lawful purpose, against such public company or body corporate or unincorporated body or society. 55-56 V., c. 29, s. 311.

Theft by co-owner.]—A conviction for theft may be made against a coowner fraudulently misappropriating the fund although the facts also prove the offences of criminal breach of trust (Code sec. 390). McIntosh v. The Queen, 5 Can. Cr. Cas. 254, 23 Can. S.C.R. 180.

A minor intrusted by his tutor or judicial guardian with chattel property of which he is part owner, who fraudulently converts it to his own use, with intent to deprive his tutor of it, is guilty of theft. Guillet v. The King (1904), 12 Can. Cr. Cas. 186.

Semble, that this section would be applicable to the case of a partner defrauding his co-partner. Major v. McCraney (1898), 2 Can. Cr. Cas. 547, 554 (S.C. Can.); Ex parte Seitz (No. 1), 3 Can. Cr. Cas. 57.

As to the meaning of the phrase "anything capable of being stolen" see

sec. 344.

Punishment.]-The limit of punishment under this section is seven years' imprisonment, unless the offender has been previously convicted of "theft," in which case the. limit is ten years. Section 386.

353. Every one commits theft who, with intent to defraud By defraudhis co-partner, co-adventurer, joint tenant or tenant in common, ing partner in mining in any mining claim, or in any share or interest in any such claim. claim, secretly keeps back or conceals any gold or silver found

in or upon or taken from such claim. 55-56 V., c. 29, s. 312.

Search warrant for mined gold, etc.]-See sec. 637.

Punishment.]-The offence is declared indictable and a limit of punish

ment fixed by sec. 378 at two years' imprisonment.

354. No husband shall be convicted of stealing during co- Husband habitation, the property of his wife, and no wife shall be con- and wife. victed of stealing, during cohabitation, the property of her husband; but while they are living apart from each other either

shall be guilty of theft if he or she fraudulently takes or con- Theft while verts anything which is, by law, the property of the other in living apart.

a manner which, in any other person, would amount to theft.

2. Every one commits theft who, while a husband and wife Theft.

are living together, knowingly,

spouse.

(a) assists either of them in dealing with anything which By assistis the property of the other in a manner which would ing amount to theft if they were not married; or, (b) receives from either of them anything, the property of Receiving the other, obtained from that other by such dealing as property of aforesaid. 55-56 V., c. 29, s. 313.

spouse.

Theft by person required to account.

Entry in account.

Effect.

In the case of R. v. Streeter, [1900] 2 Q.B. 601, two prisoners, a man and a woman, were indicted for stealing property in a dwelling house, and also for receiving the same property. The woman was the prosecutor's wife and the man had lodged in the house. After he left, the woman packed up the property in question which belonged to her husband, and sent it to the man and afterwards left the house and joined him, and the two lived together. The property was found in their possession. It was held that the man could not be convicted of receiving, although he knew the goods were the husband's, because the stealing by a wife of her husband's property did not amount to a felony at common law, and was only made a criminal offence by the English Married Woman's Property Act, 1882. But under sub-sec. (2) of this section the man would be guilty of theft by his complicity in receiving the goods.

355. Every one commits theft who, having received any money or valuable security or other thing whatsoever, on terms requiring him to account for or pay the same, or the proceeds thereof, or any part of such proceeds, to any other person, though not requiring him to deliver over in specie the identical money, valuable security or other thing received, fraudulently converts the same to his own use, or fraudulently omits to account for or pay the same or any part thereof, or to account for or pay such proceeds or any part thereof, which he was required to account for or pay as aforesaid.

2. If it be part of the said terms that the money or other thing received, or the proceeds thereof, shall form an item in a debtor and creditor account between the person receiving the same and the person to whom he is to account for or pay the same, and that such last mentioned person shall rely only on the personal liability of the other as his debtor in respect thereof, the proper entry of such money or proceeds or any part thereof, in such account, shall be a sufficient accounting for the money or proceeds, or part thereof, so entered.

3. In such case no fraudulent conversion of the amount accounted for shall be deemed to have taken place. 55-56 V., c. 29, s. 308.

Fraudulent conversion.]-The offence of fraudulent conversion of the proceeds of a valuable security, mentioned in this section, consists of a continuity of acts-the reception of the valuable security, the collection of the proceeds, the conversion of the proceeds, and lastly, the failure to account for the proceeds; and where the beginning of the operation is in one district and the continuation and completion are in another district, the accused may be arrested and proceeded against, in either district. R. v. Hogle (1896), 5 Can. Cr. Cas. 53, R.J.Q. 5 Q.B. 59. So where the valuable security in respect of which a charge of fraudulent conversion was laid was received and the terms were agreed to in the district of Iberville, and the person to whom the accused was to account for the proceeds resided in that district, but the accused collected the money in the district of Belford, proceedings taken in the district of Iberville were held good.

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