discretion, and it being his duty to pay over the amounts received by him to A. and B., as soon as he had received them.__ Held, that C. was not employed in the capacity of a clerk or servant to A. and B (1) In view of the fact that C. was bound to pay over the amounts collected as soon as he received them, it seems likely that if he failed to do so and converted them to his own use or omitted to properly account for them, he might, now, be held criminally liable, under article 308, ante, or under article 310, ante, if that part of the transaction, which made it his duty to pay over the collections as soon as received, were in the shape of a direction in writing. The employment need not be permanent, A. agreed to let B., (when he had nothing else to do), carry out parcels, for which work B. was to be paid whatever A. pleased. During the course of this employment, A. gave B. an order to receive £2, which B. collected and converted to his own use. B. was held to be a servant within the meaning of the act : (2) and where a drover who was employed to drive two cows to a purchaser and receive the purchase price, embezzled, he was held to be a servant (3). .. A, a member of, and secretary to, a society fraudulently withheld money received by him from a member to be paid to the trustees of the society, and, when prosecuted for embezzlement, was held properly described as the clerk and servant of the trustees, although the money ought in the ordinary course to have been received by the steward, and although the articles of the society were not enrolled, and the society, was not conducted strictly according to the act of parliament. (4) But a mere unpaid treasurer of a friendly society, not appointed by the trustees of the society is not a clerk or servant of the trustees, in whom the monies of the society are vested. (5) In Tyree's case, Bovill, C J., said, The trustees have all the monies of the society vested in them, by statute, as well as by one of their rules, and the prisoner must account to them; but this does not make him their servant. The treasurer is an accountable officer, but not a servant." And previously to the 31 & 32 Vict. c. 116, (which made a co-partner or co-owner indictable for stealing partnership or joint property), the secretary, also a member) of a friendly society established under the 18 & 19 Vict. c. 63, for which no trustees had been appointed could not be convicted on an indictment for embezzling the society's monies, the property in the monies being laid in A. B. (one of the members of the society), and others, (the rest of the members) and the prisoner being described as the servant of A. B. and the others; because the "others" would have comprised himself, and the indictment would thus have charged him, as his own servant, with embezzling his own money. (6) It has been held that, in England, a person cannot be convicted as clerk or servant to a society which, by reason of administering an unlawful oath to its members, is an unlawful combination and confederacy. (7) A society in the nature of a friendly society, (although not enrolled or certified under the Friendly Societies Act), some of whose rules are in restraint of trade, and therefore void, is not an illegal society in the sense of being disabled from prosecuting a servant for stealing its funds. (8) (1) R. v. Hall, 13 Cox, 49. (2) R. v. Spencer, R. & R. 299 ; R. v. Smith, R. & R. 516. (3) R. v. Hughes, I Moo. C. C. 370. (4) R. v. Hall, 1 Moo. C.C., 474; R. v. Miller, 2 Moo. C. C. 249; R. v. Proud, L. & C. 97; 31 L. J. (M. C.) 71. (5) R. v. Tyree, L. R. 1 C. C. R. 177; 38 L. J. (M. C.) 58; See article 311, ante, as to theft by partners and co-owners (6) R. v. Diprose, 11 Cox, 185; R. v. Taffs, 4 Cox, 169; R. v. Bren, L. & C. 346; 33 L. J. (M. C.) 59. (7) R. v. Hunt, 8 C. & P. 642. See, as to unlawful oaths, etc, articles 120, 121 and 122 and remarks thereon, ante pp. 64, 65 and 66. (8) R. v. Stainer L. R., 1 C. C. R. 230 ; ́ 29 L. J. (M. C.) 54. The usual presumptive evidence of the misappropriation, by a clerk, of money, etc., received by him on his employer's account is that he has never accounted to his master for the money, etc., so received by him, or that he denied having received it. Where it was the servant's duty to account for and pay over at stated times, the money received by him, his not doing so wilfully was held to be an embezzlement; (1) and would now be theft. And even where no precise time could be fixed at which it was the defendant's duty to pay the moneys over, his not accounting for them, if found by the jury to have been done fraudulently, was held to be equally an embezzlement. (2) "It is not sufficient to prove a general deficiency in account. Some specific sum must be proved to be embezzled, in like manner as, in larceny, some particular article must be proved to have been stolen.” (3) With reference to prosecutions against, government and municipality employees under articles 319 (c.), and 321 the property in the thing in question may be laid in Her Majesty or the municipality, as the case may be. (See Article 623, post.) 320. Agents and attorneys.-Every one is guilty of an indictable offence and liable to fourteen years' imprisonment who steals anything by any act or omission amounting to theft under the provisions of sections three hundred and eight, three hundred and nine and three hundred and ten. See ante, pp. 287, and 288 ante. 321. Public servants refusing to deliver up chattels books, &c. lawfully demanded.-Every one is guilty of an indictable offence and liable to fourteen years' imprisonment who, being employed in the service of Her Majesty or of the Government of Canada or the Government of any province of Canada, or of any municipality, and intrusted by virtue of such employment with the keeping, receipt, custody, management or control of any chattel, money, valuable security, book, paper, account or document, refuses or fails to deliver up the same to any one authorized to demand it. .R.S.C., c. 164, s. 55. See article 3 (cc) ante for definition of " Valuable Security." 322. Tenants and lodgers.—Every one who steals any chattel or fixture let to be used by him or her in or with any house or lodging is guilty of an indictable offence and liable to two years' imprisonment, and if the value of such chattel or fixture exceeds the sum of twenty-five dollars to four years' imprisonment. R.S.C., c. 164, s. 57. The indictment for an offence against this section may be in the same form as if the offender were not a tenant or lodger. (See article 625, posl.) As to wilful injuries to houses, etc., by tenants, &c. See article 504, post. 323. Testamentary instruments.-Every one is guilty of an indictable offence and liable to imprisonment for life who, either during the life of the testator or after his death, steals the whole or any part (1) R. v. Jackson, 1 C. & K. 384. (2) R. v. Welch, 1 Den. 199; 2 C. & K 296; R. v. Wortley, 2 Den. 333; 21 L J. (M. C) 44. (3) Rem. of Alderson, B, in R. v. Lloyd Jones, 8 C. & P. 288. See, also, R. v. Chapman, 1 C. & K. 119; R. v. Wolstenholme, 11 Cox, 313. of a testamentary instrument, whether the same relates to real or personal property, or to both. R.S.C., c. 164, s. 14. A "testamentary instrument" includes will, codicil, or other testamentary writing or appointment, as well during the life of the testator whose testamentary disposition it purports to be as after his death, whether the same relates to real or personal property, or both. (See article 3 (aa), (ante.) 324. Documents of title to lands or goods-Every one is guilty of an indictable offence and liable to three years' imprisonment who steals the whole or any part of any document of title to lands or goods. R.S.C., c. 164, s. 13. The expression" document of title to goods "includes any bill of lading, India warrant, dock warrant, warehouse-keeper's certificate, warrant or order for the delivery or transfer of any goods or valuable thing, bought and sold note or any other document used in the ordinary course of business as proof of the possession or control of goods, authorizing or purporting to authorize, either by endorsement or by delivery, the possessor of such document to transfer or receive any goods thereby represented or therein mentioned or referred to. (Art. 3 (g), (ante.) The expression "document of title to lands" includes any deed, map, paper or parchment, written or printed, or partly written and partly printed, being or containing evidence of the title, or any part of the title, to any real property, or to any interest in any real property, or any notarial or registrar's copy thereof, or any duplicate instrument, memorial, certificate or document authorized or required by any law in force in any part of Canada respecting registration of titles and relating to such title. (Art. 3 (h), (ante ) The above definition of "document of title to goods" is exactly the same as is contained in the Imperial statute, 24-25 Vict., c. 96, sec. 1. 325. Judicial or official documents, etc.-Every one is guilty of an indictable offence and liable to three years' imprisonment who steals the whole or any part of any record, writ, return, affirmation, recognizance, cognovit actionem, bill, petition, answer, decree, panel, process, interrogatory, deposition, affidavit, rule, order or warrant of attorney, or of any original document whatsoever of or belonging to any court of justice, or relating to any cause or matter begun, depending or terminated in any such court, or of any original document in any wise relating to the business of any office or employment under Her Majesty, and being or remaining in any office appertaining to any court of justice, or in any government or public office. R.S. C., c. 164, s. 15. See article 353, post, by which the same punishment is awarded, for fraudulently destroying, cancelling concealing or obliterating any document of title or any valuable security, testamentary instrument or judicial, official, or cther document, as for stealing any of them. 326. Stealing post letter bags, etc.-Every one is guilty of an indictable offence and liable to imprisonment for life, or for any term not less than three years, who steals (a) a post letter bag; or (b) a post letter from a post letter bag, or from any post office, or from any officer or person employed in any business of the post office of Canada, or from a mail; or (c.) a post letter containing any chattel, money or valuable security; or (d.) any chattel, money or valuable security from or out of a post letter. R.S.C., c. 35, ss. 79, 80 and 81. 327. Every one is guilty of an indictable offence and liable to imprisonment for any term not exceeding seven years, and not less than three years, who steals (a.) any post letter, except as mentioned in paragraph (b) of section three hundred and twenty-six ; (b.) any parcel sent by parcel post, or any article contained in any such parcel; or (c.) any key suited to any lock adopted for use by the Post Office Department, and in use on any Canada mail or mail bag. R.S.C., c. 35, ss. 79, 83 and 88. 328. Every one is guilty of an indictable offence and liable to five years' imprisonment who steals any printed vote or proceeding, newspaper, printed paper or book, packet or package of patterns or samples of merchandise or goods, or of seeds, cuttings, bulbs, roots, scions or grafts, or any post card or other mailable matter (not being a post letter) sent by mail. R.S.C., c. 35, s. 90. See article 4, ante, p. 7 for the definitions of post letter elc. See article 624, as to how the ownership of articles stolen is to be laid in the indictment, etc. Sec. 89, (which is unrepealed), of the R.S.C. chap. 35, has the following provision against opening post letters &c; "Every one who unlawfully opens, or wilfully keeps, secretes, delays or detains, or procures, or suffers to be unlawfully opened, kept, secreted or detained, any post letter bag or any post letter,whether the same came into the possession of the offender by finding or otherwise howsoever, or after payment or tender of the postage theron, if payable to the person having possession of the same, neglects or refuses to deliver up any post letter to the person to whom it is addressed or who is legally entitled to receive the same, -is guilty of a misdemeanor." An offence against this section will be punishable, under article 951, post, by five years' imprisonment; seeing that chap. 181, R.S.C.,—relating to punishments, is repealed. The taking away and destroying of a post letter in order to suppress inquiries, supposed, by the defendant, to be made, in it, about her character, was held to be a larceny of the letter. (1) Taking the mail-bags off the horse during the momentary absence of the person employed to carry them was held to be a taking from his possession, (2) A., with intent to deprive B.,-to whom a letter is addressed,-of such letter, (1) R. v. Jones, I Den. 188; 2 C. & K. 236. (2) R. v. Robinson, 2 Stark, N. P. 485. and to commit a fraud, induced C., a post-office employee, to intercept and hand over such letter while in course of transmission by post. Held, that A. and C. were both guilty of larceny of the letter. (1) 329. Election documents.—Every one is guilty of an indictable offence and liable to a fine in the discretion of the court, or to seven years' imprisonment, or to both fine and imprisonment who steals, or unlawfully takes from any person having the lawful custody thereof, or from its lawful place of deposit for the time being, any writ of election, or any return to a writ of election, or any indenture, poll-book, voters' list, certificate, affidavit or report, ballot or any document or paper made, prepared or drawn out according to or for the requirements of any law in regard to Dominion, provincial, municipal or civic elections. R.S.C., c. 8, s. 102; c. 164, s. 56. Persons wilfully destroying, injuring, obliterating or making erasures, etc., in election documents, are punishable, under article 503, with seven years' imprisonment. 330. Stealing railway or steamboat tickets.—Every one is guilty of an indictable offence and liable to two years' imprisonment who steals any tramway, railway or steamboat ticket or any order or receipt for a passage on any railway or in any steamboat or other vessel. R.S.C., c. 164, s. 16. In an American case, it was held, (under a statute of the State of Minnesota, making it larceny to steal railroad passenger tickets), that a conductor may be indicted for appropriating tickets, sold and issued by a railroad company, and taken up by the conductor, such tickets, after being thus taken up being the property of the company. (2) 331. Cattle.-Every one is guilty of an indictable offence and liable to fourteen years' imprisonment who steals any cattle. R.S.C., c. 164, ss. 7 and 8. This article refers to live cattle. The stealing of a dead cow or of any part of it would be punishable under article 356, post. The expression "Cattle" includes any horse, mule, ass, swine, sheep or goat, as well as any neat cattle or animal of the bovine species, and by whatever technical or familar name known, and shall apply to one animal as well as to many. (Art. 3 (d), (ante.). Article 499 (B), post, inflicts the same punishment of fourteen years' imprisonment for wilfully destroying or damaging any cattle. A person who kills a horse, or any other animal included in the above definition of cattle, with intent to steal its carcase or skin, etc., is by the terms of article 307, guilty of stealing it, and liable to fourteen years' imprisonment, under the above article, 331. Attempts and written threats to kill or injure cattle are punishable, under articles 500 and 502 by two year's imprisonment. A. removed sheep from the fold into the open field, killed them and took away (1) R. v. James, 24 Q. B. D. 439; 59 L. J. (M. C ) 96. |