Where a person in his own dwelling-house stole from another person goods of the value of £5, it was held to constitute, under the English statute; the offence of stealing in a dwelling-house. (1)

A. a lodger, invited B. an acquaintance, to sleep at his lodgings, (without the knowledge of C., the landlord of the house, and during the night, A. stole B.'s watch from the bed's head. Held, that A. was properly convicted of stealing in the dwelling-house. (2)

If, although the stealing take place in a house, the thing be under the protection of the person of the prosecutor, at the time it is stolen, the offence will not, in that case, come within the meaning of the article; as, for instance, where the defendant procured money to be given to him for a particular purpose and then ran away with it; (3) or, where the prosecutor, by means of the ring dropping trick, was induced to lay down his money upon a table, and the defendant took up the money and went out of the house and carried it away. (4)

Goods left at a house for a person supposed to reside there will be under the protection of the house and the stealing of them will be within the above article, if their value amounts to $25 or, if the goods, not being of that value, are taken by menacing or threatening and putting some one in the house in bodily fear.

Two boxes belonging to A., who resided at No. 38, Rupert Street, were delivered by A., a porter, (whether by mistake or design did not appear) at No. 33 in the same street; B. the occupier of the latter house, imagining that the boxes were for C., who lodged there, delivered them to him; C. converted the contents of the boxes to his own use and absconded. Held, that the goods were within the protection of the house, and that C. was rightly convicted of stealing in a dwelling-house. (5)

If one, on going to bed, put his clothes and money by his bedside, they are under the protection of the dwelling house, and not of the person. (6) It is a question for the court and not for the jury whether goods are under the protection of the dwelling-house or in the personal care of the owner. (7)

It seems clear that, under the express words of clause (b), there must be bodily fear created by an actual menace or threat, in order to bring the offence within that clause.

Upon an indictment for stealing yarn in the process of bleaching it was proved that some time before the stealing, the yarn had been spread out upon the ground, but had been afterwards taken up from where it was spread out, and thrown into heaps, in order to be carried into the house and that, it was while it was thus in heaps, that the prisoner stole it. Held, that the case did not come within the statute so as to make the defendant guilty of stealing the yarn while in the process of bleaching, as it appeared there was no occasion, as part of the process to leave the yarn on the ground in the state in which it was when taken by the defendant. (8)

It has been held that goods remain in a "stage, process, or progress of manufacture," though the texture be complete, if they be not yet brought into a condition for sale.

If the theft he proved, but not the circumstances necessary to bring the case within this article the defendant may be found guilty of the simple theft.

(1) R. v. Bowden, 2 Mood. C. C 285; 1 C. & K. 147.

(2) R. v. Taylor, R. & R. 418.

(3) R. v. Campbell, 2 Leach, 264.

(4) R. v. Owen, 2 Leach, 572.

(5) R. v. Carroll, I Moo. C. C. 89. (6) R. v. Thomas, Car. Sup. 295. (7) Id.

(8) R. v. Hughill, 2 Russ. 225. R. v. Woodhead, 1 M. & Rob. 549.

346. Stealing by picklocks, etc.-Every one is guilty of an indictable offence and liable to fourteen years' imprisonment who, by means of any picklock, false key or other instrument steals anything from any receptacle for property locked or otherwise secured.

347. Stealing manufactures, etc.-Every one is guilty of an indictable offence and liable to five years' imprisonment who steals, to the value of two dollars, any woollen, linen, hempen or cotton yarn, or any goods or articles of silk, woollen, linen, cotton, alpaca or mohair, or of any one or more of such materials, mixed with each other or mixed with any other material, while laid, placed or exposed, during any stage, process or progress of manufacture, in any building, field or other place. R.S.C., c. 164, s. 47.

348. Fraudulently disposing of goods entrusted for manufacture,— Every one is guilty of an indictable offence and liable to two years' imprisonment, when the offence is not within the next preceding section, who, having been intrusted with, for the purpose of manufacture or for a special purpose connected with manufacture, or employed to make, any felt or hat, or to prepare or work up any woollen, linen, fustian, cotton, iron, leather, fur, hemp, flax or silk, or any such materials mixed with one another, or having been so intrusted, as aforesaid, with any other article, materials, fabric or thing, or with any tools or apparatus for manufacturing the same, fraudulently disposes of the same or any part thereof. R.S.C., c. 164, 8. 48.

349. Stealing from ships, wharves, &c.—Every one is guilty of an indictable offence and liable to fourteen years' imprisonment who

(a.) steals any goods or merchandise in any vessel, barge or boat of any description whatsoever, in any haven or in any port of entry or discharge, or upon any navigable river or canal, or in any creek or basin belonging to or communicating with any such haven, port, river or canal; or

(b.) steals any goods or merchandise from any dock, wharf or quay adjacent to any such haven, port, river, canal, creek or basin. R.S.C., c. 164, s. 49.

This article is to the same effect as section 63 of 24-25 Vic., c. 96,

It appears that the " goods" or "merchandise" mentioned in this article mean such goods and merchandise as are usually lodged in vessels or on wharves or quays. (1) The lug ge of a passenger going by steamboat is within the

enactment. (2)

The words of the article are“ in any vessel," etc.; and, therefore, in order to bring an offender within its terms, it will be immaterial whether or not the defendant has succeeded in getting the goods away from the ship, if there has been a sufficient asportation to constitute theft; but, in order to bring a case within clause (b) of the article, it will be necessary to prove more than a simple

(1) R. v. Grimes, Fost. 79 n; R. v. Leigh, 1 Leach, 52. (2) R. v. Wright, 7 C. & P. 159.

theft for the words there are "from any dock," etc., to satisfy which there must be an actual removal of the thing from the dock, etc., in the same manner as in the case of an indictment for stealing from the person. (1)

350. Stealing wreck.-Every one is guilty of an indictable offence and liable to seven years' imprisonment who steals any wreck, R.S.C., c. 81; s. 36 (c).

See article 3 (dd), an:e, for the definition of "wreck.”

351. Stealing on railways.-Every one is guilty of an indictable offence and liable to fourteen years' imprisonment who steals anything in or from any railway station or building, or from any engine, tender or vehicle of any kind on any railway.

If the whole offence be not proved, the jury may, if the evidence warrants it, bring in a verdict of guilty of an attempt. (See article 711, post).

352. Stealing things deposited in Indian graves,-Every one who steals, or unlawfully injures or removes, any image, bones, article or thing deposited in or near any Indian grave is guilty of an offence and liable, on summary conviction, for a first offence to a penalty not exceeding one hundred dollars or to three months' imprisonment, and for a subsequent offence to the same penalty and to six months' imprisonment with hard labour. R.S.C., c. 164, s. 98.

353. Destroying documents.—Every one who destroys, cancels, conceals or obliterates any document of title to goods or lands, or any valuable security, testamentary instrument, or judicial, official or other document, for any fraudulent purpose, is guilty of an indictable offence and liable to the same punishment as if he had stolen such document, security or instrument. R.S.C., c. 164, s. 12.

See article 3 (g), (h), (aa), and (cc), for definitions of "document of title to goods," "document of titie to lands,' testamentary instrument," and "valuable security."

46

The stealing of testamentary instruments is punishable under article 323, of documents of title to land or goods, by article 324, and of judicial or official documents under article 325, ante.

354. Fraudulent concealment of property.—Every one is guilty of an indictable offence and liable to two years' imprisonment who, for any fraudulent purpose, takes, obtains, removes or conceals anything capable of being stolen.

355. Bringing stolen property into Canada.—Every one is guilty of an indictable offence and liable to seven years' imprisonment who, having obtained elsewhere than in Canada any property by any act which if done in Canada would have amounted to theft, brings such property into or has the same in Canada. R.S.C., c. 164, s. 88.

This article is to the same effect as section 269 of the English Draft Code. For definition of "property" see article 3 (v), ante.

(1) Arch. Cr. Pl. & Ev. 471.

See article 314, ante as to receiving in Canada goods stolen or obtained out of Canada, by any indictable offence.

356. Stealing things not otherwise provided for.-Every one is guilty of an indictable offence and liable to seven years' imprisonment who steals anything for the stealing of which no punishment. is otherwise provided or commits in respect thereof any offence for which he is liable to the same punishment as if he had stolen the

same.

2. The offender is liable to ten years' imprisonment if he has been previously convicted of theft. R.S.C., c. 164, ss. 5, 6 and 85.

See article 628, post, as to requirements in indictment charging a previous conviction, and article 676, post, as to procedure thereon.

357. Additional punishment when value exceeds two hundred dollars.—If the value of anything stolen, or in respect of which any offence is committed for which the offender is liable to the same punishment as if he had stolen it, exceeds the sum of two hundred dollars the offender is liable to two years' imprisonment, in addition to any punishment to which he is otherwise liable for such offence. R.S.C, c. 164, s. 86.

PART XXVII.

OBTAINING PROPERTY BY FALSE PRETENSES AND OTHER CRIMINAL FRAUDS AND DEALINGS WITH PROPERTY.

FALSE PRETENSES.

358. Definition.-A false pretense is a representation, either by words or otherwise, of a matter of fact either present or past, which representation is known to the person making it to be false, and which is made with a fraudulent in'ent to induce the person to whom it is made to act upon such representation.

2. Exaggerated commendation or depreciation of the quality of anything is not a false pretense, unless it is carried to such an extent as to amount to a fraudulent misrepresentation of fact.

3. It is a question of fact whether such commendation or depre ciation does or does not amount to a fraudulent misrepresentation of fact.

The above article is in the exact words of section 270 of the English Draft Code.

359. Punishment for obtaining by false pretenses-Every one is guilty of an indictable offence and liable to three years' imprisonment who, with intent to defraud, by any false pretense, either directly or

through the medium of any contract obtained by such false pretense, obtains anything capable of being stolen, or procures anything capable of being stolen to be delivered to any other person than himself. R.S.C., c. 164, s. 77.

As stated by the Royal Commissioners, (1) it was necessary to assign separate, provisions to this offence, although in point of mischief and moral guilt, it is much the same as theft.

The distinction between it and theft seems to be that, in theft, the owner of the thing, in question has no intention to part with his property therein to the person obtaining it, while in the case of an obtaining by false pretenses he has an intention to part with the thing, but his consent to part with it is brought about by the false pretense made to him (2). "If, said Parke, B.,' a person, through the fraudulent representations of another, delivers to him a chattel, intending to pass the property in it, the latter cannot be indicted for larceny, but only for obtaining the chattel under false pretenses." (3)

•

The cases already cited under the head of theft that if a servant, (acting under a general authority co-equal with his master's), intentionally parts with his master's property, under a misconception fraudulently induced by false representations as to the real facts, such property is not said to be stolen, but obtained by false pretenses; but, if the servant, having only a limited authority, and being precluded from parting with the property, is, nevertheless, tricked out of it, the offender thus obtaining it is guilty of theft; because the master has never consented to nor authorized the parting with it. (4)

To constitute the crime of obtaining by false pretenses there must be; 1, a false statement, which represents, as existing, something which does not exist, or which represents, as having happened or existed, something which has not happened or has not existed; 2, the offender must also have known at the time of making the false statement or representation that it was false; and 3, the goods in question must have been parted with in consequence of and through the false representation.

If a man represents as an existing fact that which is not an existing fact (5), and so gets the money or chattels of another, that is a false pretence (6), it being for the jury to say whether or not the defendant, at the time he did the act, had guilty knowledge of the quality of such act; (7) and "whether or not the pretences used were the means of obtaining the property." (8) For instance, there is a false pretence where a person goes to a shop and says that he is sent by some particular customer for such and such goods,' which, upon the faith of what he says, are handed to him; or where the secretary of a benefit society obtains money from one of its members by representing that a certain amount, exceeding that actually due, is owing by such member to the society (9); or where money is obtained by means of a begging letter setting forth false statements as to the name and circumstances of the accused (10);

(1) See Remarks of Royal Commissioners, at p. 272, ante.

(2) White v. Garden, 10 C. B. 927 Reg. v. Barnes, 2 Den. C. C. 59.
(3) Powell v. Hoyland, 6 Exch. 70; R. v. Adams, Russ. & Ry. 225.
(4) Reg. v. Prince, L. R. 1 C. C. 150.

(5) The offence" is constituted by the pretence that something has taken place which in fact has not taken place; per Kelly, C. B., Reg. v. McGrath L. R. I C.C. 209.

(6) Reg. v. Woolley, ! Den. C. C 559; Reg. v. Welman, Dears, 188: Reg. v. Archer, Dears. 449; Reg. v. Thompson L. & C. 233; Reg. v. Lee, L. & C. 309. Reg. v. Kerrigan, L. & C 383.

(7) R. v. Francis, L. R 2 C. C. 128.

(8) 2 Russ. Cr. 3 Ed. 289 n.

(9) Reg. v. Woolley, 1 Den. C.C. 559. (10) Reg. v. Jones, 1 Den, C.C. 551.