In the case of Alexander Martin, 14th July 1824, it appeared that the cottage of an old man, ninety years of age, had been broken into, in a solitary part of Aberdeenshire, and robbed of a number of articles. He himself, with an elderly daughter who lived with him, appeared and gave evidence, and distinctly identified the prisoner. He had remained in the house a considerable time, and forced them to light a candle and shew him where their valuable property was concealed. He was traced to the neighbourhood of the house, chiefly by a red waistcoat which he wore at the time of the violence, and also returning from it on the following day. He was convicted and executed.1

In the case of Matthias Little, Glasgow, Christmas 1830, the house of Mrs Hill, near Glasgow, was proved to have been broken into by a party of men, with crape on their faces. The man-servant forced his way through the stauncheons of the window of his room, and roused the servants from the farm-offices, who alarmed the depredators, and struck one of them who was running away such a violent blow on the face as was thought at the time to have effectually disabled him, although, by creeping into the bushes, he contrived to elude pursuit and escape. The prisoner was proved to have told two persons with whom he lodged in Glasgow, that he had been engaged in the housebreaking, and detailed it in a way in every respect consonant to the testimony given by the suffering person; and a socius criminis identified him as the person who had watched on the outside, while the others entered the house. One of the most convincing, and, in truth, an irresistible article of evidence, was elicited by the man who struck the blow, who, being desired to point out the part of the face where he struck the man, went down to the prisoner and pointed out the scar still remaining above his eyebrow.2

Thus it appears that the direct evidence of the person robbed, coupled with very slender adminicles, is sufficient to convict of stouthrief; and that, if it be wanting from inability to identify, the defect may be supplied by recent possession of the robbed articles, supported by a train of circumstances; or by the testimony of a socius similarly supported, provided it appears in itself credible, and cohere well with the other circumstances of the case.

1 Unreported.-2 Unreported.

CHAPTER VIII.

OF THEFT AND ITS AGGRAVATIONS.

THE fundamental requisites in the crime of theft consist in the felonious taking or appropriation of the property of another. But this occurs also in swindling; and, therefore, it is material to distinguish between the offences which fall under the one denomination, and those that are embraced by the other.

1. Theft consists in the secret and felonious abstraction of the property of another for the sake of lucre, without his consent: Swindling is the fraudulent impetration of that consent on false pretences.

The above definition includes the essential requisites of these two crimes. Though nearly allied, they are nevertheless distinct from each other. The theftuous abstraction implies that the thing is ab initio, clam et fraudulenter, taken out of the custody of its possessor. "A furto omnimodo excusatur," says our old law, qui initium suæ detentionis habuit per dominum.”1 On this principle, the following points are fixed in regard to the distinction of the two offences.

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2. It is not the less theft that the owner has intrusted the property to the thief, provided that was done for a temporary and transient purpose, and not with the intention of transferring the real rights, or subjecting the depositary to a mere action for account.

It happens continually in the business of life, that the possession of property is, for temporary purposes, entrusted to others, without any intention either of transferring the right of custody, or of calling the custodier to account merely by an

action of account. Thus plate is intrusted to the butler, linen to the chambermaid, horses to the groom, stores to the housekeeper, clothes to the footman, sheep to the shepherd, tools to the gardener, and the like. In all such cases there is no intention of transferring the property: the custody is still retained animo by the proprietor, and he is still held to be possessing by the hand of his servants, according to the rule, Qui facit per alium facit per se. In all of them, accordingly, the abstraction of the articles by the person intrusted is theft.1 This point was settled so long ago as August 10. 1608, in the case of Margaret Heartside, an attendant on the Queen, who was indicted for the theft of sundry jewels, her Majesty's property, of which she had the custody. She pleaded in defence that the crime was not theft, but breach of trust; but this plea was overruled by the Court.2 It is matter of every day's practice, accordingly, to libel such cases as theft; and the rule that abstraction in such circumstances by the custodier is no minor offence constantly referred to as fixed law on the Bench.

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Farther, the same rule applies in circumstances a shade more favourable to the pannel, and where the person intrusted is a higher species of servant. An apprentice or shop-servant is guilty of theft if he abstract any part of the goods contained in the shop, though he is intrusted with the power of selling them for a bona fide price. Accordingly, on 27th December 1803, Agnes Gray was indicted for stealing the shop goods under her charge as shop-servant, and was sentenced to six months' imprisonment; and, on July 27. 1789, fourteen years' transportation were inflicted on Peter Mathieson, an apprentice, for theft of his master's tools. So also George Chalmers, March 13. 1828, was convicted of theft, and sentenced to twelve months' imprisonment, for the abstraction of various articles. from his master's shop, on a libel which set forth theft by a shop-servant of his master's goods, as an aggravated species of theft; and, in the case of Daniel Alexander Murray and John Tait, November 18. 1829, an indictment was sustained as relevant, which charged the latter of these parties with theft of haberdashery articles and gloves, from the shop in which he was shop-boy at the time.

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The law of England proceeds upon the same principles.

1 Burnett, 112; Hume, i. 63.-2 Hume, i. 65.3 Ibid.; Burnett, 112.Ibid.; Hume, i. 68. Unreported.

The clear maxim of the common law, established by a variety of cases, is, that where a party has the bare custody or charge of the goods of another, the legal possession remains in the owner, and the party may be guilty of trespass or larceny, in fraudulently converting the same to his own use.1 And this rule holds universally in the case of servants, whose possession of their masters' goods, by their delivery or permission, is the possession of the master himself. Thus, in Paradise's case, 1766, the prisoner was indicted for stealing a bill for £100, the property of a mercer at Devizes, to whom he was foreman and book-keeper, receiving a yearly salary, but not living in the house, and who had delivered him that bill, among others, to inclose in cover, and send by post. This was held theft by all the Judges. In like manner, a porter in the employment of the prosecutor, who had embezzled £ 80 worth of gauze belonging to his master, and which had been delivered to him with a view to delivery to customers; and a servant, who abstracted five quarters of oats from corn-factors in the River Thames, were found by all the Judges to have been guilty of larceny.5 So also, a servant going off with money, which his master had given him to carry to another, and applying it to his own use; and a servant, who had obtained ten guineas from her mistress, on pretence that she knew where she would get them changed, and immediately ran off with them, were found by all the Judges to have committed theft.7

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3. If goods are delivered to a stranger or carrier for a special and particular purpose, independent of any transfer of property, as to be conveyed to a particular place, or subjected to a particular operation, the abstraction of them by the person intrusted is theft.

Where the custody is for a special and particular purpose only, as by delivery to a porter to carry to a specified place, or a letter-carrier to deliver at a particular door, or a tradesman's servant, who is sent with an article to be delivered to a customer, or a hackney-coachman, who gets an article along with a person who hires his vehicle, the right of custody is

1 East. ii. P. c. 564; Russell, ii. 197.-2 Ibid.-3 East. ii. 565; Russell, ii. 198. Russell, i. 198.5 Leach, ii. 824; Russell, ii. 200.6 Russell, ii. 201. - Leach, i. 302; Russell, ii. 201.

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temporary only, and the case is clearly held to be theft. For a very long period, accordingly, such cases have been considered in this light.

Thus in the case of James Shand, December 11. 1764, a tailor's workman was found guilty of theft, for running off from his master's house with a suit of clothes, which he had been employed to make.2 In the case of Daniel Mackay, assistantporter at the Post-Office, July 6. 1781, and of Adam Johnston, postmaster, 25. 1780, the crime of abstracting money from letters was found to be theft, at common law, as well as under the statute; although, in the latter case, it was strenuously contended to be breach of trust only. And, in the case of Andrew Laurie, 8th January 1802, a libel was found relevant at common law, which charged a letter-carrier with the theft of money contained in a letter put into his hands for delivery. So also, in the case of Archibald Drummond, 14th March 1815, a porter at the Post-Office, was convicted of stealing £200 from a sealed parcel given him at the office, to deliver according to the address.5

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The same principle has been applied to analogous cases of every other description. Thus, in the case of Alexander Mackay, 27th December 1826, it was held to be a clear case of theft, that he had carried off and concealed a portmanteau, and its contents, for which the owner had sent him, as a porter, to bring from a shop in Aberdeen to his lodgings, about a quarter of a mile off. The like judgment was given in the case of Edgerton Wylie, July 1829, where an indictment for theft was sustained as relevant, which charged the prisoner with stealing a box of goods, placed on his back as a porter, at the Register-Office, Edinburgh, as he was following the person to whom it belonged along the South Bridge. On 23d March 1815, Archibald Paterson and Alexander Marr were indicted for stealing a woollen web from a carrier's warehouse, where they were regularly employed to load and unload the carts, and sentenced to seven years' transportation. the case of William Glen, May 18. 1827, an indictment was objected to, which charged the pannel with stealing the contents of a parcel wrapped up in a silk handkerchief, which was committed to his charge as an occasional carrier between Lin

1 Hume, i. 64, 65; Burnett, 112, 113.2 Hume, i. 67.3 Ibid. Ibid. 5 Ibid.— Ibid. i. 64; Syme, 53.—7 Unreported.—3 Hume, i. 65.

In