7 & 8 Geo. 4, c. 29, s. 12. Punishment. R. v. Jones. as the said justices think fit, for the space of eighteen months, SERVANT OR OTHER PERSON STEALING IN A MORE. It is enacted by 7 & 8 Geo. 4, c. 29, s. 12, "that if any person shall steal in any dwelling-house any chattel, money or valuable security to the value in the whole of five pounds or more, every such offender being convicted thereof shall suffer death as a felon." So much of that section, however, as inflicts the punishment of death has long been repealed (p), and the punishment now provided for the offence is penal servitude for not less than three years, or imprisonment for any period not exceeding two years, with or without hard labour. It is not thought necessary to encumber this work with all the decisions on the stat. 7 & 8 Geo. 4 (q), which does not apply exclusively to servants; though it obviously applies to them as well as other persons. The following decisions, however, having taken place on indictments under this act against servants, could not well be omitted here consistently with the object of this work. In a case (r) which happened soon after the passing of the act, a shopman was charged with stealing in a dwelling-house sixty-eight yards of lace, the property of his master. The prisoner had sent the lace (which was in several distinct pieces) from Abingdon to London in a parcel by the coach, and no one piece of lace was worth 5l.; whereupon his counsel suggested (0) This "clause raising the same sum, whatever the extent of suffering and the number of the sufferers, and inflicting the same penalty to whatever degree the negligence may have been culpable, without any power to lower the fine or shorten the imprisonment, can scarcely be sup. posed to have undergone much consideration on the part of the Legislature." Per Lord Denman in Filliter v. Phippard, 11 Q. B. 354. The enactment in the text is a general law, Richards v. Easto, 15 M. & W. 251; S. C. 3 D. & L. 515; and see Filliter v. Phippard, ubi supra. It is not repealed by the 7 & 8 Vict. c. 84 (which repeals some part of 14 Geo. 3, c. 78). See Schedule A. to that act. (p) It was first repealed by 2 & 3 Will. 4, c. 62, which substi tuted transportation for life. And the 4 Will. 4, c. 44, s. 3, added hard labour and previous imprisonment. Both those acts, however, were repealed by 7 Will. 4 & 1 Vict. c. 90, which substituted transportation for not exceeding fifteen nor less than ten years, or imprisonment not exceeding three years, with or without hard labour and solitary confinement. By 9 & 10 Vict. c. 24, the punishment was altered to transportation for not less than seven years, or imprisonment for any period not exceeding two years, with or without hard labour; and by 20 & 21 Vict. c. 3, penal servitude for not less than three years was substituted for transportation. (q) See them collected in 1 Russ. on Crimes, bk. 4, ch. 5. (r) R. v. Jones, 4 C. & P. 217. that in favorem vitæ it might be taken that the pieces of lace might have been stolen at different times; but Bolland, B., said: "I cannot assume that to have been so. We find that the lace is all sent in one parcel, and all brought out of the prosecutor's house at once, and unless you can give some evidence to show that it was stolen at different times you do not raise your point; but even if you did I should think it would be of no avail, for on the last Winter Circuit it appeared that a person at Brighton stole goods in the same way that you wish me to suppose that this person did; for it was shown that he stole the articles one or two at a time, and under value, but that he carried them out of his master's house altogether, the articles amounting in all to more than 57. value; and Mr. Baron Garrow, after much consideration, held that as the articles were all brought out of the prosecutor's house together, it was a capital offence." The prisoner was found guilty. theon. Where (s) an under-butler was indicted for stealing his mas- R. v. Pheter's plate to the value of 187. 5s., in his dwelling-house, and found guilty, but the jury recommended him to mercy on the ground that they believed that he intended to replace the property, which it appeared he had pledged, a finding which the prisoner's counsel contended amounted to a verdict of not guilty; Gurney, B., without expressing any opinion on the point, directed that the prisoner should be tried on another indictment which had been found against him for stealing a silver saucepan belonging to his master. This also the prisoner had pledged; and his counsel contended that he meant to replace this also. But in summing up, Gurney, B., said: "If this doctrine of an intention to redeem property is to prevail, courts of justice will be of very little use. A more glorious doctrine for thieves it would be difficult to discover, but a more injurious doctrine for honest men cannot well be imagined." The jury found the prisoner guilty, and he was transported for fourteen years. (s) R. v. Phetheon, 9 C. & P. 552. And see R. v. Wright, 9 C. & P. 554, note, where on a servant, who was indicted for stealing his master's plate, setting up as a defence his intention to replace it, Hullock, B. (Holroyd, J., being present) left it to the jury to say whether the prisoner took the plate with intent to steal it, or whether he merely took it to raise money on it for a time and then return it, for that in the latter case it was no larceny. To which the learned reporters add the following note, "This decision has given rise to much discussion in various cases; and much difficulty has been found in applying the doctrine it lays down to the facts of particular transactions. In some instances, where it has appeared clearly 7 & 8 Geo. 4, c. 29, s. 15. Punishment. What is a shop. What is a countinghouse. STEALING IN A SHOP, WAREHOUSE OR COUNT ING-HOUSE. The stat. 7 & 8 Geo. 4, c. 29, also enacts, sect. 15,-"That if any person shall break and enter any shop, warehouse or counting-house, and steal therein any chattel, money or valuable security, every such offender, being convicted thereof, shall be liable to any of the punishments which the court may award as hereinbefore last mentioned. The punishment of this offence is the same as for the offence lastly considered (1). Upon this enactment it was held by Alderson, B. (u), that to come within it "the place must be more than a mere workshop, it must be a shop for the sale of articles. A workshop such as a carpenter's shop or a blacksmith's shop would not be within the act." Lord Denman, C. J., however, in a subsequent case (x), refused to be guided by the opinion of Alderson, B., and held that a blacksmith's shop was within the act. And in R. v. Potter. another case (y), a machine-house where a weighing-machine was kept, at which all goods sent out were weighed and a book kept in which were entered all goods weighed and sent in, and in which house the account of the time of the men was taken and their wages paid (although the books were brought there for the purpose, being usually kept elsewhere) was held to be a counting-house. Distinction between larceny and embezzlement. LARCENY AND EMBEZZLEMENT BY CLERKS The legal distinction between these two offences is that the former consists in the felonious taking of property, &c., out of the possession of the master (z), whether that possession be actual or constructive, whilst the latter consists in the receiving property, &c., for or on account of the master, and fraudulently appropriating it, before it reaches his possession, either actual or constructive. Morally and substantially, however, the offence is the same in both cases, and accordingly the punishment for both offences is now the same. But although, since (t) Supra, p. 282. (u) In R. v. Saunders, 9 C. & P. 79. (x) R. v. Carter, 1 C. & K. 173. (y) R. v. Potter, 2 Den. C. C. 235. (z) In R. v. Holloway, 1 Den. C. C. 370; S. C. 2 Carr. & K. 946. Lord Wensleydale said, "The definitions of larceny are none of them complete: East's is the most so, but that wants some explanation. His definition is the wrongful or fraudulent taking and carrying away by any person of the mere personal goods of an other from any place with a felonious intent to convert them to his (the taker's) own use and make them his own property, without the consent of the owner.' This is defective for not stating what the fraudulent taking is, and what the felonious intent is; this may be explained, that the 'taking' is without any colour of right, and the intent' an intent to deprive the owner permanently of the property. Cases also show that a taking of goods with an intent to return them is not larceny." See also supra, p. 283, note (s). Lord Campbell's Act for the Improvement of the Administration of Criminal Justice (a) a person indicted for one of those offences may be found guilty of the other, yet there is still a great practical difference between the two, for even now should a person be indicted for and convicted of either of those offences, upon evidence which proves the other, the conviction may be quashed and the prisoner escape (b). Most of the technicalities, therefore, which formerly surrounded these offences, and which it was hoped would be done away with by Lord Campbell's Act, still survive. It therefore becomes absolutely necessary to advert to the numerous cases which have been and still continue to be decided upon the distinction above pointed out. servant at common law. At common law a servant might be guilty of felony in feloni- Larceny by ously taking away the goods of his master, though they were goods under his charge, as a shepherd, butler, &c., and may at this day, for any such offence, be indicted as for a felony at common law; but at common law, if a man had delivered goods to his servant to keep or carry for him, and he carried them away animo furandi, it was doubtful whether such servant was guilty of felony, or merely of a breach of trust. These doubts gave Stat. 21 Hen. rise to, and are recited in the stat. 21 Hen. 8, c. 7, whereby such 8, c. 7. an offence was made felony (c). Subsequent decisions, however, Where serestablished that where a party had only the bare charge or cus- bare custody. tody of the goods, or money of another, the legal possession remained in the owner, and the party might be guilty of trespass and larceny in fraudulently converting them to his own use (d). This rule holds universally in the case of servants whose possession of their master's goods by delivery of their master is held to be the possession of the master himself, where the master only intended to part with the custody of the goods, and if the servant converts such goods to his own use it is larceny, whether he had a felonious intent at the time he received them, or con (a) 14 & 15 Vict. c. 100, s. 13, post. (b) R. v. Gorbutt, 26 L. J., M. C. 47; S. C. 1 Dears. & Bell C. C. 166. (c) It is said by Gould, J., in R. v. Wilkins, 1 Leach, C. C. 520, that this statute did not mean to weaken, but assist, the common law. But it is remarkable that the stat. 5 Eliz. c. 10 (which revived and made perpetual the stat. 21 Hen. 8), recites that it had been repealed by the general words of stat. 1 Mary, sess. 1, c. 1. That statute of Mary, however, only enacted that all offences made felony during the reign of Hen. 8, which were not felony before, should be repealed. Hence it would seem that at the time (d) Bac. Abr. Master and Ser- text. vant had Paradice's ceived such an intention afterwards (e). Thus, in the case of a butler, or other servant, to whose care a master entrusts his plate or other goods, it has uniformly been held that such servants are guilty of felony by embezzling such plate or goods, or taking them fraudulently away; and this doctrine is not confined to menial servants only, for it appears, both by Hale and Hawkins, that if a shepherd who has the care of sheep, and who, from the nature of his employment, must be constantly in the pastures, takes away any part of the flock with intent to steal it, he is guilty of felony, although, in both cases, the plate is actually delivered to the butler (f), and the sheep to the shepherd; for the possession still remains in the master (g). Lord Coke says (h) “these things be in onere, et non in possessione, promi, coci, pastoris, &c." And this law prevails in all cases where servants have not the absolute dominion over the property, but are only intrusted with the care or custody of it for a particular purpose (i). Thus, a foreman and book-keeper to a mercer, not residing in his master's house, but going there every day to transact business, who received from his master certain bills to send to a correspondent by post, in the usual course of business, but, instead of sending them all, kept back one for which he obtained cash, and absconded with the money, was held rightly convicted of larceny; as the possession of the bill still remained in his master (j). So a carter going away with his master's cart was holden to have been guilty of felony (k). So where a tradesBass's Case. man's servant and porter was sent with a package of goods from his master's house with directions to deliver them to a customer, but by the way opened the package, sold the goods, and pocketed part of the price, all the judges held this to be felony (1). Robinson's Spear's Case. And so where a corn-factor, having purchased a cargo of oats, sent his servant with a barge to receive part of the oats in loose bulk, and the servant ordered some of the oats to be put into (e) To incite a servant to steal his master's goods is a misdemeanour, indictable at the sessions, although it be not charged in the indictment that the servant stole the goods, nor that any other act was done, except the soliciting and inciting, R. v. Higgins, 2 East, 5. (f) In R. v. Ashley, 1 Carr. & K. 198, it was held that plate belonging to a club could not be described as the property of the house steward in an indictment against a member of the club for stealing it. (g) See per Gould, J., in 1 Leach, C. C. 523. (h) 3 Inst. 108. (i) Upon this principle it was held in R. v. Wilkins, 1 Leach, C. C. 520, that to obtain goods by false pretences from the servant of the owner to whom they were delivered for the purpose of being carried to a customer who had purchased them, was a taking from the possession of the master; and a person so taking them with a preconceived design to steal them was guilty of felony. See R. v. Johnson, 21 L. J., M. C. 32. (j) Paradice's Case, 2 East, P. C. 565, cited by Gould, J., in 1 Leach, 523; see 2 Russ. on Crimes, 153; and see R. v. Metcalfe, Moo. C. C. 433. (k) Robinson's Case, 2 East, P. C. 565. (1) Bass's Case, 2 East, P. C. 566; 1 Leach, 251, 524. |