A Treatise on Criminal Law as Applicable to the Dominion of Canada

was responsible for the money, and had a special property in it.

A person who is nominated and elected assistant-overseer, under the 59 Geo. 3, c. 12, s. 7, by the inhabitants of a parish in vestry, and who is afterwards appointed assistant overseer by the warrant of two Justices, and performs the duties of an overseer, is well described in an indictment for embezzlement as the servant of the inhabitants of the parish. (a)

It has been held that the form of indictment, given by the Con. Stats Can., c. 99, s. 51, was only applicable to embezzlement under c. 92, s. 42. (b)

The Legislature did not intend to frame a form of indictment for embezzlement which should be universally applicable, but only to furnish the form of indictment for one species of embezzlement, as a model upon which indictments for other species of embezzlement might be framed. (c)

The form of indictment "did feloniously embezzle" shews it is inapplicable to embezzlement when a misdemeanor; and it would seem, from these words, that the form is applicable to embezzlement as a substantive felony. (d)

Embezzlement, not being a substantive offence known to the common law, like larceny, but existing by statute, and some rendering it a felonious stealing, others simply felonious, and others a misdemeanor only, the meaning of the form is doubtful. (e) But only one species of embezzlement is contemplated, because the form follows the statutory description of one species of embezzle

(a) Reg. v. Carpenter, L. R. 1 C. C. R. 29; 35 L. J. (M. C.) 169.

(b) Reg. v. Cummings, 4 U. C. L. J. 182 (in E. & A.)

(d) Ib. 184, per Draper, C. J.

(e) Ib. 188, per Macaulay, C. J.

ment. (a) It would seem that the form given by the 32 & 33 Vic. c. 29, p. 290, is only applicable to an embezzlement under c. 21, s. 70.

Under an ordinary indictment for larceny, the embezzlement of money received by a clerk or servant, for or on account of his employer, and fraudulently converted while in transitu, cannot be proved; and although the Act on which the indictment is framed makes the embezzlement within it a larceny, it is necessary to charge the offence specially in the terms of it as against the Statute, and not at common law, it not being a common law offence; and an indictment under the 32 & 33 Vic., c. 21, s. 70, is not sustained in evidence by proof of a larceny at common law. (b)

In an indictment for embezzlement, where the offence relates to any money, or any valuable security, it shall be sufficient to allege the embezzlement to be of money, without specifying any particular coin or valuable security; and such allegation, so far as regards the description of the property, shall be sustained by proof of the embezzlement of any amount, although the particular species of coin, or valuable security, of which such amount was composed, is not proved, etc. (c)

Upon an indictment for embezzlement under the Con. Stats. Can., c. 92, s. 42, it must have appeared in evidence that the defendant received the money, etc., "by virtue of his employment." (d)

S. 70 of the 32 & 33 Vic., c. 21, omits the words "by virtue of such employment," and, therefore, if a man pay a servant money for his master, and the servant embezzles it, the case will be within the present enactment, although

(a) Reg. v. Cummings, 4 U. C. L. J. 184, per Spragge, V. C.

(b) Ib. 187, per Macaulay, C. J.

(e) 32 & 33 Vic., c. 21, s. 73. See R. v. Hall, 3 Stark, 67; R. & R. 463. (d) See Reg. v. Thorley, 1 Mood. C. C. 343; R. v. Hawtin, 7 C. & P. 281; R. v. Mellish, R. & R. 80; R. v. Snowley, 4 C. & P. 390.

it was neither the duty of the servant to receive it, nor had he authority to do so. (a)

False Pretences.-The law as to false pretences has been construed, of late years, in a much more liberal spirit than formerly. (b)

It has been well remarked, that, in order to support an indictment for obtaining money, etc., by false pretences, there must be a pretence of an existing fact. It must appear that the party defrauded has been induced to part with his money by the pretence, and the pretence must be untrue. (c)

Where the prisoner was convicted for obtaining money by falsely pretending that he carried on an extensive business as a surveyor and house agent, and that he had employment for several clerks, to collect rents, and assist in the conduct of the said business. The jury found that he carried on no business whatever:-Held, that the conviction was right, as there was a false pretence of an existing fact, the party defrauded was induced to part with his money by the pretence, and the pretence was untrue. (d)

Numerous cases have fully established that there must be a false pretence of an existing fact, and that a promise to do an act will not suffice.

Proof that the defendant had procured from the private prosecutor a promissory note, by a promise to give the prosecutor $600 on what he would have out of the proceeds of the note, when discounted, is not sufficient to sustain a conviction on an indictment for obtaining the signature of the prosecutor to a promissory note, with intent to defraud. (e)

(a) See Arch. Cr. Pldg. 453.

(b) Reg. v. Lee, 23 U. C. Q. B. 340, per Hagarty, J.

(e) Reg. v. Pickup, 10 L. C. J. 310.

If the law were otherwise, every man who purchased goods, stating that he would pay for them the next week, and who failed to pay for them, could be prosecuted criminally, instead of being sued. (a)

There must be a false pretence of a present or past fact, and a promissory pretence to do an act is not within the Statute. (b)

The prisoner, in company with one D., whose note he held, came to the store of H. and F., where an agreement was entered into between the parties that D. would pay for all the goods furnished by H. and F. to the prisoner, on the amount being endorsed on his (D.'s) note held by the prisoner. The prisoner called several times at H. and F.'s with the note mentioned, obtained goods and had the amount endorsed on the note. In July, 1863, he called without the note and induced H. and F. to let him have goods, saying "he would bring down the note and have the amount endorsed in a day or two." The day after the prisoner met D., and told him to pay nothing to H. and F. beyond what he would find indorsed on the note, alleging that he had got some goods but it was "in his own book." The prisoner did not afterwards present the note, in fulfilment of his promise, to have the amount endorsed thereon. The jury found that when the goods were obtained from H. and F. the prisoner did not intend to bring the note, or to pay for the goods. The prisoner having been indicted at the Quarter Sessions and found guilty, judgment was postponed and the case reserved under Con. Stats. U. C., c. 112, for the opinion of this Court-Held, that the conviction must be annulled, as there was no false representation or pretence of an exist

(a) Reg. v. Pickup, 10 L. C. J. 312, per Duval, C. J.

(b) Reg. v. Gemmell, 26 U. C. Q. B. 314, per Hagarty, J.; Reg. v. Giles, 11 L. T. Reps. N. S. 643; 10 Cox. 44.

ing fact, but a mere promise of defendant which he failed to perform. (a)

It was suggested that the conviction in this case might be sustained under the (then) Con. Stats. C., c. 99, s. 62, as the facts appearing on the trial would warrant a conviction of larceny, and consequently under that section the conviction ought to stand, but, per Richards, C. J. (b) "I am by no means certain that this section is not intended to apply to those cases only where the false pretences shewn on the trial amount to larceny, and when, but for this provision, the misdemeanor would be merged in the felony, and the prisoner might claim to be acquitted on that ground," and he added that without expressly deciding this point the charge of larceny could not be sustained, on the facts proved at the trial, and that the conviction, therefore, failed on both grounds,

A false representation by a married man,-whereby a single woman is induced to part with her money to him, -that he is a single man; that he will furnish a house with the money and marry the woman is sufficient to support a conviction for obtaining money under false pretence; for, although the two last statements are mere false promises to do something in future, and as such are insufficient, the pretence of being a single man is a pretence of an essential fact. (c) One false fact by which the money is obtained is sufficient to support the indictment, although it may be united with false promises. which would not of themselves do so. (d)

Not only is it necessary that there be a false pretence of an existing fact, but the prosecutor must be induced to part with his property in consequence of the false pre

(a) Reg. v. Bertles, 13 U. C. C. P. 607.

(b) Ib. 610.

(d) Ib.; Reg. v. Lee, 23, U. C. Q. B. 340, per Hagarty, J.

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