1835. MOUNTFORD'S placed a loaded shell in a person's path, so constructed as that it exploded and had injured or was likely to have injured another, that he would have been punishable under this act. This instrument does not differ in principle. Both are calculated to explode and to damage by explosion. If the instrument is capable of effecting the injury contemplated by the statute, the exact nature of the instrument is not of any importance. PATTESON J. "You are rather assuming that a shell is an arm; it is rather the loading of an arm." ALDERSON B. "It must be something used in offensive warfare, known in ordinary parlance as arm.” A gun barrel is not an arm; yet in the case quoted Rex v. Coates, 6 Carr. & P. 394. it was adjudged to be a loaded arm when so used. In Rex v. Hayward, Russ. & Ry., 78. an instrument capable of cutting was held within 43 G. 3. c. 58. though not usually used for that purpose; Atkinson's case, Russ. & Ry. 104. so also in Rex v. Withers, suprà, 294. As to the attempting to discharge, if the prisoner caused the act of attempt he attempted; generally speaking, causing to be done proves doing. 2 Hawk. P. C. 6. 2. c. 29. s. 11. 17 State Trials, 379. In construction of law, prisoner must be taken to be present. He who puts in motion those means which have a direct tendency to do a thing, does it: thus, placing a spring gun in a man's path. ALDERSON B. "The principle is laid down by HOLROYD, J. Flott v. Wilks, 3 B. & A. 315. If one person makes use of another who is a mere instrument to do an act, the thing done is the act not of him who is merely the instrument, but of the person who uses him as an instrument. Godson in reply. The authorities cited only show that if death had ensued the case would have been murder. If this be a loaded arm, the children's plaything called a Waterloo bangup is a loaded arm. THE JUDGES were unanimously of opinion that the means used were not loaded arms within the act, and that the conviction was therefore wrong. 1835. MOUNTFORD'S REX v. JOHN GROVE. 1835. for embezzle THE prisoner was tried before Mr. JUSTICE WILLIAMS, An indictment at the Central Criminal Court, holden in September, ment may be 1835, upon an indictment charging him, 1st, That he, on the 28th August, being employed as a clerk to Masterman and others, did receive money to a large amount, to wit, 500l., on account of his said masters, and feloniously did embezzle and steal the same, against the statute, &c. supported since 7 & 8 G. 4. c. 29. s. 48. general deby proof of a ficiency of ought to be forthcoming without show monies that 2dly, The like, only for embezzling and stealing the ing any parti sum of 10%., on 29th August. cular sum received, and for. 3dly, Stealing, on 29th August, one bank note for not accounted payment of 10%., one bank note for 5l., 10 sovereigns, 10 sovereigns, 10 crowns, 10 crowns, and 10 shillings, the property of his said masters. 4thly, The like, only omitting to state that he was a clerk to Masterman and others. The prisoner was, at the time of the transactions in question, and had been for some time before, cashier in the bank of Messrs. Masterman and Co., bankers, London. His duty as cashier was to take charge of the cash, when any payment was made into the bank in money and paper; and the course was for the cashier to hand over the paper to a clerk, and to enter the cash received in a book kept by him (the cashier), called the 1835. GROVE'S money book. It was the duty of the cashier, at the close of the business of each day, to see that the cash in hand agreed with the money book, and to strike a balance, denoting the sum in cash which the cashier had in his charge, and which ought to have been kept either in the drawer in the counter, of which he had the key, or in a box in the banking-house, of which he had the key and the charge. On the 28th August, 1835, the cash in the money book at the close of business was 17627., and a fraction, which sum was by the prisoner carried forward, as in due course it ought to have been, and formed the first item of the account in the said book for the 29th. On the latter day, at the close of business, the prisoner, after crediting himself with money paid by him, (it being part of his duty to pay away as well as receive money), and debiting himself with cash received, made the balance in the "money book " 13097. and a fraction, and that sum the prisoner ought to have had in one or the other of the above mentioned places of deposit on the same day (29th August). Soon after the close of business, Mr. Oxley, one of the partners, sent for the prisoner, and after intimating his suspicions, required him to produce his money. The prisoner thereupon said that he was short; and being asked how much, replied about 900l.. and threw himself upon the mercy of his employers. Upon examination, it was found that the prisoner, instead of 13097. in his hands, had only 3451. and a fraction, leaving the actual deficiency 9647. and a fraction. Mr. Oxley, who proved the whole case, had no knowledge of the facts whatever, except what has been above stated, and could not say when the money, or any part of it, had been purloined, from what person or persons it had been received, what sort of money had been abstracted, and whether from the till, or upon its receipt from customers. It was proved that there were two or three other cashiers besides the prisoner, who were stationed close to him, and that there must be at least two cashiers present during the hours of business. It was objected that there was no case to go to the jury,- 1st, Because the evidence, such as it was, applied equally to the charges of embezzlement and larceny, and not particularly to either. 2dly, That there ought to have been some proof of some sum or sums of money having been abstracted when, from whom, and what sort of money. The learned JUDGE, however, (in concurrence with GURNEY B.) refused to stop the case, but reserved the points. And accordingly the jury having been told that taking money from the till would amount to larceny, and that abstracting money paid to him (the prisoner), before it reached the till or possession of his masters would be embezzlement, it was left to them to say whether both, or either of the charges which were stated to them, were established by the proof. The jury found the prisoner guilty of embezzlement to the amount charged, and Not guilty of stealing. The question, therefore, for the opinion of THE JUDGES was, whether upon the close of the case for prosecution the prisoner was entitled to an acquittal. This case was argued in Michaelmas term 1835, before all THE JUDGES, (except Lord DENMAN C. J., BOSANQUET J., VAUGHAN J., BOLLAND B., and LITTLEDALE J.) Mahon for the prisoner. This conviction cannot be supported. In order to enable a jury to convict,. either of larceny or embezzlement, there must be 1835. GROVE'S Case. 1835. GROVE'S proof of some specific sum abstracted, and the time when. Here no particulars whatever are given. The only evidence is a deficiency in his accounts, but how that arose is not shown; it might have arisen from false entries. The evidence, too, applies equally to larceny. ALDERSON B. That is negatived by the jury. The only question is, whether the statute 2 W. 4. c. 4. s. 3. has not removed the only difficulty. Notwithstanding the statute, there ought to be some specific proof on which the jury can rely; that act was only intended to remove minute variances from the statement. If the balance was fictitious there was no embezzlement. It is impossible to fix any particular time when the money was either abstracted from the till or withheld by prisoner; nothing to show it took place on the 28th or 29th might have been long before, and on many occasions. The money might have been received from the employers for the purpose of payments. Rex v. Headge, Russ. and Ry. 160., Bazeley's case, 2 Leach C. C. 841.; Rex v. E. Smith, Russ. and Ry. 267., 6 C. & P. 626. Lee for the prosecution. It was a question for the jury to say what character attached to the misconduct admitted by the confession of the prisoner. It was either larceny or embezzlement. That question was submitted to them, and they have decided that he received money and withheld it from his employers. This is embezzlement, they have considered the different suppositions and exercised their judgment, and if there was any evidence for them, the conviction must be supported. Embezzlement is a statutable felony. It was so made, in order to remove the difficulties arising from the strictness of proof in cases of larceny. The proof |