« EelmineJätka »
the insurance office. I reserved the ques- application on the facts. There was here tion whether the act so found amounted to no intent to injure or defraud by setting a felony ; but sentenced the prisoner to fire to any building, but only by setting penal servitude, on which sentence he is fire to the goods. To be within that act, still in custody.
the injury or defrauding must be the imCook Evans, for the prisoner.-If a man mediate and direct consequence of setting sets fire to his own goods in his own house, fire to the building. though with intent to defraud an insurance [POLLOCK, C.B.- Is there any count in office, he commits no felony at common the indictment which brings the offence law. Setting fire to one's own house is within the two statutes ? The setting fire not any felony at common law—1 Hawk. to the goods, per se, is no offence. It is 106. Arson is defined to be the malicious only an offence when done in a house to and voluntary burning the house of an- which the setting fire would be felony.] other-1 Hale, P.C. 566. If a man right- Scotland, for the prosecution. The fully occupies the house of another, and prisoner set fire to the goods, with intent burns it wilfully, it is not arson at com- thereby to defraud the insurance office. mon law- The King v. Spalding (1), Th This is an offence within the statute 14 & King v. Breeme (2), Isaac's case (3). By 15 Vict. c. 19. The goods were in a 43 Geo. 3. c. 58, it was first made felony house, the burning which, with intent to in any one to set fire to a house, whether defraud an insurance office, would be in his occupation or not, if done with felony within the statute 7 Will. 4. & 1 intent to defraud. -See 4 Black. Com. Vict. c. 89. The indictment is sufficient. c. 16. p. 221. That statute is repealed, It alleges that the prisoner set fire to the so far as relates to setting fire to buildings, goods in a house in his own occupation, by the 7 & 8 Geo. 4. c. 27, but re-enacted with intent to defraud the insurance office. with amendments in the statute 7 & 8 According to the construction contended Geo. 4. c. 30. s. 2. The statute 14 & 15 for, it would be a felony to set fire to goods Vict. c. 19. s. 8, under which the present in a railway station, but not in a house. indictment is framed, is the only statute [Hill, J.— The statute 12 Geo. 3. c. 24. that applies to setting fire to goods ; but provides for the case of setting fire to that is only a felony when they are in a stores in a building within that act.] building, “the setting fire to which is Cook Evans replied. made felony by this or any other act of parliament." This section, in the words POLLOCK, C.B.–We are all of opinion “other act of parliament,” refers to the that the conviction ought to be affirmed. statute 12 Geo. 3. c. 24. s. 1, which is in The objection taken for the prisoner is this: pari materiá, by which setting fire to any that with respect to the last act of parliabuildings belonging to the arsenals or ment, 14 & 15 Vict. c. 19. s. 8, which prodockyards, &c. is made felony. It does not vides, that if any person shall wilfully and refer to the statute 7 Will. 4. & 1 Vict. maliciously set fire to any goods, being in c. 89. s. 3; for that act does not make a building, the setting fire to which buildthe simply setting fire to a house felony, ing is made felony by statute, he shall be but only when done “ with intent thereby guilty of felony, applies only to the case to injure or defraud any person.” An where the setting fire to the house, per se, intent to defraud is not necessary to con- is an offence; and we are referred to a statute, stitute the offence under the statute 12 12 Geo. 3. c. 24, which makes it an offence Geo. 3. c. 24. The 14 & 15 Vict, c. 19. to set fire to certain public buildings; and does not use the word “house" or shop," it is urged that we therefore ought not to but refers to large public buildings-2 connect the statute on which the indictRussell on Crimes, 552. At any rate, the ment is framed with the statute 7 Will. 4. statute 7 Will. 4. & 1 Vict. c. 89. has no & 1 Vict. c. 89. s. 3, so as to assist this
indictment, and that we cannot so connect (1) 1 L. C.C. 218.
them without importing something that (2) Ibid. 220.
the legislature has not expressed. But we (3) 2 Russell on Crimes, 550.
are all of opinion that that objection cannot prevail. I think it very likely, that has the means of knowing him by reason of if this objection had been made fifty years the marks on the article indicating the ago it would have succeeded. Acts of owner. But the finder is not guilty of parliament were then required to be per- felony merely because, when afterwards fectly precise, and no resort was had to a learning who the owner is, he fails to make reasonable construction of the act, and the restitution, and fraudulently retains the Courts were in the habit of saying, if the property. facts did not bring the case exactly within the words of the act of parliament, the pri- The following case was stated by the soner must escape. But this is not the deputy chairman of the Dorset Quarter present mode of construing statutes. We Sessions. look to see what is really the intention of At the General Quarter Sessions of the the legislature. Now, under the act of par- Peace for the county of Dorset, holden at liament referred to by the prisoner's counsel, Dorchester, on the 19th of October 1858, the simply setting fire to a building would David Christopher was tried on an indict. not be a felony. It would be necessary in ment charging him with stealing, on the the indictment to add the words “ wilfully 13th of October in the year 1858, at the and maliciously,” which are not in the act parish of Stinsford, in the county of Dor14 & 15 Vict. c. 19. To make it an offence, set, 41. in money and two purses, of the the setting fire to a house must be wilful goods and chattels of one Jane Lovell. and malicious, or there must be some one There was also a count charging him with in the house, or it must be done with in- feloniously receiving the same property, tent to injure or defraud. Under the knowing it to have been stolen. It apstatute 14 & 15 Vict. c. 19, we think the peared from the evidence that the proseoffence is complete if there be a setting cutrix left her master's house between fire to the goods under such circumstances eleven and twelve o'clock in the morning as, if shewn with respect to a house set on of the 13th of October, to go to Dorchester fire, would render the setting fire to the (a distance of about a mile), having in her house a felony. Here the intent to de- possession a purse of green leather comfraud is alleged with respect to the goods. monly called a porte-monnaie), containing The setting fire to the house with the like within it another smaller purse, about the intent would be felony. The offence, in size of a half-crown, in which there were our opinion, is sufficiently stated in the three sovereigns and two half-sovereigns. counts, and supported by the finding, to In the public path between Stinford House bring the case within the acts of parlia- and the first meadow, as she supposes, she ment.
dropped the purse, but thinking she might Conviction affirmed. have left it on her table, she went on, and
returned about one o'clock. Finding out
her loss, she went, in the afternoon, to [CROWN CASE RESERVED.]
Dorchester, and had the property cried by
a public crier, describing it as a green lea1858. Nov. 22. THE QUEEN V. CHRISTOPHER. * ther purse, and a smaller one inside, and
that they contained three sovereigns and Larceny- Appropriating Property found
one half-sovereign, and a half-crown, or 31. -Guilty Intent.
12s. 6d. This was an error, as it really
contained, as she found afterwards, two Where a person finds a purse of money half-sovereigns, instead of only one: 41. 2s. on the high road and appropriates it to his 6d. About four o'clock the prisoner was at own use, the question for the jury is, whether the Bull's Head public-house, with a man he does it at the time of finding with a felo- named Upshall, whom he treated to beer, nious intent, and that depends on whether and paid for it with a sovereign, which he at that time he knows who the owner is, or took out of a purse. Whilst they were
sitting at the table together in the tap, the * Coram Pollock, C.B., Wightman, J., Williams,
crier came by and cried something. The J., Channell, B. and Hill, J.
landlady, Mary Jane Russell, went to the
door to hear. Upshall asked her what it v. Thurborn (1) and The Queen v. Preston was cried. The landlady, from the pas- (2) are conclusive authorities, that the sage, said "some money lost, 31. 12s. 6d." question always should be respecting the The prisoner was taken up eventually, at prisoner's intention at the time he finds twelve o'clock at night, at another public- the thing. If he then intends to keep the house, and the two purses, with six half- thing to himself, knowing the owner, or sovereigns, two shillings and sixpence in knowing by the mark on the article that silver, and some pence were found on him. he can easily be found, he is guilty of The constable said, “ These things were felony, but not otherwise. The direction lost."- Prisoner said, “ Well, I know I did of the chairman would lead the jury to pick them up.”—Constable said, “ There think that if he had the wicked intention
more money than this.”—Prisoner of retaining the purse, after he heard the said, " I know I have done wrong." purse cried, he would be equally guilty.
On the part of the prisoner it was con- (He was here stopped by the Court.) tended, that at the time he took the purses Stock, for the prosecution. - The pri(which was admitted) he had no felonious soner was guilty of stealing, if at any time intent; that there was no name or special he intended to appropriate the article to mark on the purse or the money, and himself. that the subsequent appropriation did not [WILLIAMS, J. - It is no offence in a amount to larceny; that though civilly he finder simply intending to appropriate an was not criminally liable. In summing up, article he has found to his own use.
Το I told the jury that a felonious intent was make it a felony, he must intend to do held to be a necessary ingredient in every it dishonestly.] larceny, but that intention was to be judged The peculiar nature of the property lost of by acts subsequent as well as immedi- being a purse within a purse must have ate; that if they thought the conversion given the prisoner reason for supposing of the money to his own use, without in- that the owner might be found. Besides, quiry, was proved, and that there was, his subsequent conduct may be looked to, though no name or mark on the purse, yet and shews a dishonest intention. such peculiarity in it as containing a smaller [WILLIAMS, J.-His subsequent conduct one, as to warrant some inquiry, and, above is consistent either with his having origiall, if they were satisfied that the prisoner, nally an honest intention, or with his then when sitting in the public-house, heard having a dishonest intention.] the words of the landlady, which Upshall It is a question of degree. Had the said he heard, and then did not take mea- prisoner kept the purse for some time, sures to make restitution, that I thought waiting to see if a claimant appeared, inthey might infer felonious intention, and stead of immediately spending the money, find him guilty. The jury returned a ver- the case would have been different. The dict of guilty on the count for stealing. prisoner could have easily found the owner A previous conviction was then proved, had he tried. and the prisoner was sentenced to six [CHANNELL, B. - The Queen y. Dixon calendar months' hard labour. On appli- (3) shews that the prisoner must have the cation of counsel for the prisoner, a case immediate means of knowing him.] was granted, and execution of judgment The direction of the chairman only respited till the decision of the Court above draws the attention of the jury to the was known. I respectfully submit the
proper points. question whether the above facts warranted, in point of law, the finding of the jury POLLOCK, C.B. - I think that we are in this case.
bound by the decision of The Queen v. Ffooks, for the prisoner.—The prisoner Thurborn, which we act upon and adopt. is not guilty of felony, for there was no To warrant the conviction, there must be name or mark about the purse which could lead him, at the time he picked it up, to
(1) 1 Den. C.C. 387; s. c. 18 Law J. Rep. (N.s.)
M.C. 140. know who the owner was, or to believe
(2) 21 Law J. Rep. (N.s.) M.C. 41. that he could readily be found. The Queen (3) 25 Law J. Rep. (N.s.) M.C. 39.
something more shewn than appears on
THE POPLAR DISTRICT BOARD this case. There must be a felonious in- 1858. OP WORKS, appellants, v. tention at the time the prisoner finds the May 26.
KNIGHT AND ANOTHER, rearticle.
spondents. WIGHTMAN, J.-We are bound by the
The Metropolis Local Management Act, decision in The Queen v. Thurborn. Williams, J.-I think that The Queen v.
18 8: 19 Vict. c. 120. ss. 68, 76, 104, 135,
-"Sewer." Thurborn was rightly decided, though I do not agree with some of the principles there A marsh wall or embankment that keeps laid down. The way in which this case back the river Thames at high water from was left to the jury would have the direct inundating the Isle of Dogs, and through tendency to lead them to suppose, that if which sewers pass which drain the isle at low the prisoner at the time he was in the water, is “a sewer" within the meaning of public-house had then for the first time a the 204th section of the 18 f. 19 Vict. c. 120, felonious intention, he might be convicted which gives power to the district board of on the charge of stealing. The evidence works in whom any sewer is vested to shews, according to my view of it, that remove any building erected thereon without the prisoner found the purse, and took their consent. possession of it as a finder, and that the Quære-Whether the marsh wall was wicked intention of appropriating it came vested in the district board under section 68. upon him afterwards.
and Schedule A, or in the Metropolitan Board CHANNELL, B.—The case of The Queen of Works under section 135. and Schedule v. Thurborn, followed by The Queen v. D; but the latter never having exercised Preston and The Queen v. Dixon, shews, any jurisdiction over it, and the district that the question to be determined is, what board being de facto in the exercise of that was the intent of the party at the time he jurisdiction—Held, on a complaint by them took original possession of the property ? against persons who had treated with them I do not say that you may not look at sub- as having jurisdiction, that the marsh wall sequent circumstances with a view to that; was vested in the district board, but that question was not put to the jury. Semble-That a house, built with founIt is quite in accordance with the propo- dations placed on the surface, without any sitions laid down by the chairman, that digging out, is within section 76, which enacts, the jury may have convicted the prisoner, "that before beginning to lay or dig out the though they believed that he conceived foundation of any house seven days notice the felonious intention some time after he shall be given to the district board.” first became possessed of the purse.
[By Lord Campbell, C.J. and Erle, J., Hill, J.-In order to justify a convic- Crompton, J. doubting.] tion, two points must be made out by reasonable evidence: first, that the pri- A case having been stated on appeal soner had at the time of finding the purse by one of the Metropolitan Police Magisan intention of appropriating it to his own trates of the Thames Court, was referred use; secondly, that he had at that time by the Court, with the consent of the reasonable ground for believing that the parties, to an arbitrator, to have the facts owner could be discovered; and that may more fully stated. be either from previous knowledge of the The following are the material parts of chattel, or from there being some name or
the CASE:mark upon it at the time he picked it up The appellants are the Board of Works which indicated who the owner was. To for the Poplar District, constituted under be guilty of felony, the finder of an article the 18 & 19 Vict. c. 120, ' An Act for the must know who the owner is, or have better local management of the metropolis.' reasonable means at the time of finding it The respondents are the lessees of land of knowing who he is.
situated in the Isle of Dogs belonging to Conviction quashed.
the Ironmongers' Company, and within the Poplar District.
The marsh wall referred to in the case
is an immemorial wall or embankment of recovered from the respondents according earth within the limits of the said district, to the act. Some correspondence ensued, which keeps back the waters of the Thames and on the 16th of March 1857 the appelat high tide from the Isle of Dogs. The lants wrote, finally refusing to assent to soil and freehold of that portion of the a plan submitted to them by the responmarsh wall, as to which questions have dents, and calling upon them to comply arisen between the appellants and respon- with the notice of the 5th of March. dents, is vested in the Ironmongers’ Com- Early in April 1857 the respondents pany. The marsh wall was before the built four houses, in respect of which no passing of the 18 & 19 Vict. c. 120. question arises, and which are still standwithin the jurisdiction of the Metro- ing. In the first week in May 1857 the politan Commissioners of Sewers. The respondents began to build two other Metropolitan Board of Works have never houses, one of which was completed as far exercised any jurisdiction over it. On as concerned the carcase, the other was the eastern side of the Isle of Dogs are scarcely begun by the 28th of the same situate two main sewers, called respectively month. No works of any kind were done Great Sluice and Drunken Dock Sluice, by the respondents in respect of these two which drain the whole of that part of the houses before the first week in May 1857, isle south of the West India Dock Basin. except the building of the retaining wall, These sewers pass through and under which wall was intended to act as the outthe marsh wall in their course to the side wall of the second house if it had ever Thames, one at a considerable distance to been completed, and was constructed with the east, the other at a considerable dis- buttresses, and in other respects so as to tance to the west of that portion of the serve that purpose : the entire site of the marsh wall which is the subject of dis- incomplete house and the greatest part of pute. These two sewers are referred to the site of the completed
ne was on the in Schedule D. annexed to the 18 & 19 ground which had been occupied by the Vict. c. 120. These sewers have also portion of the marsh wall removed by attached to them four inlet sluices, used the respondents without leave from the for the purpose of flushing, which inlet appellants. The four houses still standsluices pass under the marsh wall at various ing are drained, and the two houses places, but all of them at a considerable removed by the appellants were indistance from that portion of it which is tended to be drained, by drains running the subject of dispute.
into a sewer under the jurisdiction of In October 1856 the appellants autho- the appellants; in building these last two rized the respondents to cut the marsh houses, however, so far as they were wall within specified limits; the respon- built, no foundations were laid or dug out, dents, however, cut through about 32 feet nor was any part of the same built over in length and 8 feet in depth, and any sewer whatever, unless the marsh wall 30 feet in breadth of the wall (which was
be a sewer. about 60 feet broad at that place) beyond On the 12th of May 1857 the appellants the specified limits. And thereupon the served the respondents with a notice which, appellants on the 7th of January 1857 -after reciting that the respondents had not served them with a notice, ordering them given seven days' notice to the board before to reinstate this part of the wall; and beginning to lay and dig out the foundaafter some further correspondence, on the tions of certain new houses lately begun 5th of March 1857, the appellants served to be erected by the respondents, contrary the respondents with another notice, re- to the orders of the board, and that without citing the former, and requiring them the consent of the board they had cut within seven days to reinstate that part of away part of a sewer called the marsh the marsh wall, and in case of default wall, and had not within fourteen days that they, the appellants, would cause after notice from the board caused the the houses built thereon without their same to be reinstated, and that they had consent to be demolished or altered, and without the consent of the board erected the wall to be re-made, the expenses to be certain buildings in and over a certain