under fear of personal violence. If, however, a robbery was committed, the prisoner ought to have been indicted for that crime and not for larceny, which is a different offence.

Secondly, even supposing that the facts stated in the case might amount to larceny, yet those facts have not been found by the jury. The jury were not asked whether the money was obtained against the will of Jane Powell, yet this is a necessary ingredient in the crime of larceny. The facts of the case shew clearly that the money was not obtained by a trick, because Jane Powell was not deceived. The money, therefore, was given either willingly or through fear. The jury have not found that the money was given through fear, and therefore it cannot be assumed against the prisoner that it was not given willingly.

Mc Connell, for the prosecution. The prisoner was properly convicted, because the facts found by the jury amount to larceny.

In the first place the prisoner's offence was robbery; there was sufficient force used to constitute robbery. The prisoner is therefore guilty of larceny, which is included in robbery, and he can be properly convicted on an indictment for larceny. Even if there was not force enough to constitute a robbery, still there was enough to make the taking larceny. If a person is induced by fear to give money against bis will, this makes the taking of the money larceny, even although there is not sufficient force to make the crime robbery. Obtaining money against a person's will is a sufficient "taking" within the definition of larceny.

Not only was the money obtained against the will of Jane Powell, but it was also obtained, as the jury have found, by a trick; a taking by a trick may be larceny: Reg. v. Morgan (Dears. C. C. 395). The money here was obtained by fraud and force. Obtaining money in either of these ways may amount to larceny; much more so must it be larceny when both fraud and force are employed.

There was no misdirection. The intent with which an act is done must be left to the jury, and this was done here, and the jury have found that the money was obtained by a trick, and that the prisoner knew that no bid had been made. It was not necessary to ask the jury formally whether Jane Powell gave her money willingly. There was and could have been no doubt at the trial on this point. The jury must have thought that the money was given unwillingly. The facts stated in the case shew clearly that the money was not obtained from Jane Powell of her own free will.

KELLY, C.B. I think the conviction ought to be affirmed. The prisoner acted as, and professed to be, an auctioneer. There was a bid for the piece of cloth, and it was knocked down, or at least the prisoner pretended to knock it down, to Jane Powell. An alterca

tion then arose. Jane Powell said the cloth was not knocked down to her, and that she had not bid for it. The prisoner knew that this was so, but pretended that she had made a bid for the cloth. He went up to her and intimidated her, for she says in her evidence that she was afraid of him. She was told that she should not leave the room, unless she paid for the cloth. In consequence of being thus frightened by the prisoner, and of his threat that she should not leave the room, she paid the money. The meaning of the finding of the jury must be taken to be, that she did not pay the money voluntarily. She was induced to do so by a subterfuge, and also by a threat of what might have amounted to personal violence. Under these circumstances she parted with the money against her will. The question is, whether on these facts the prisoner was properly convicted of larceny.

There are several definitions of larceny. Bracton (Lib. 3, c. 32) defines it thus: "Furtum est contractatio rei alienæ fraudulenta cum animo furandi invito illo cujus res illa fuerit." In modern times Mr. East (2 East, P. C. 553) has defined larceny to be "the wrongful or fraudulent taking and carrying away by any person of the mere personal goods of another with a felonious intent to convert them to his (the taker's) own use, and make them his own property without the consent of the owner." The latter definition has been adopted by Parke, B. (R. v. Holloway, 1 Den. C. C. at p. 375), and other judges of high authority. The Criminal Law Commissioners thus define larceny: "Theft is the wrongfully obtaining possession of any moveable thing which is the property of some other person, and of some value, with the fraudulent intent entirely to deprive him of such thing, and have or deal with it as the property of some person other than the owner.' (Cr. L. Com. 1845-9, 3rd rep.) This case comes exactly within this definition, as the money was taken against the will of the owner. Jane Powell did not part with it voluntarily, but the possession was obtained by fraud and force. Both these causes operated on her mind. The crime of obtaining money by false pretences differs from larceny. It is constituted by the pretence that something has taken place which, in fact, has not taken place. The present is a different case. Jane Powell was not deceived. She was intimidated, and by the operation of both the intimidation and the surprise at the trick she was induced to give up her money against her will..

It is not necessary to consider whether there was sufficient force used to constitute a robbery. If there was such force then the prisoner was properly convicted of larceny, which is included in the crime of robbery. All the elements of larceny would then be present.

It has been also argued that the direction to the jury was wrong. It might possibly

have been better if the question had been put directly to the jury whether the money was obtained by the threat of personal violence. We could not, however, say that the jury were improperly directed in being asked whether the money was obtained by a trick or artifice. It would, under the circumstances, have been superfluous to have asked the jury whether the prosecutrix parted with her money against her will.

MARTIN, B. The indictment in this case was for larceny. If a robbery was, in fact, committed, that does not prevent a conviction for larceny. There is no reason why the robbery, which is the greater offence, may not be waived, and the larceny, the lesser offence, be charged and proved.

BLACKBURN, J. I am of the same opinion. To constitute a larceny there must be an animus furandi, i.e., a felonious intent to take the property of another against his will. The essence of the offence is knowingly to take the goods of another against his will. The goods may be obtained in various ways. If by force, then a robbery is committed. This would include larceny, but force is not a necessary ingredient in larceny. It is sufficient to constitute a larceny if the goods are obtained against the will of the owner. It would be a scandal to the law if goods could be obtained by frightening the owner, and yet that this should not constitute a taking within the meaning of the definitions of larceny. The material ingredient is that the goods should be obtained against the will of the owner. The other ingredients of larceny undoubtedly existed here, as appears from the evidence in the case.

There is ample evidence that the money was obtained against the will of Jane Powell. If there had been any doubt upon the point the jury should have been asked the question; but it is clear that Jane Powell did not part with her money of her own free will. This is, in effect, stated in the case. There was evidence that the money was obtained by the prisoner with a felonious intent and against the will of Jane Powell. The jury have, in

BRETT, J. The question is, whether there was a sufficient taking of the money. If the matter rested on the trick alone that might be insufficient, as it is rather evidence of the prisoner's motives than the means by which he obtained the money. I had some doubt also whether the fear of a temporary imprisonment, not accompanied by any personal violence, rendered the taking in this case a robbery. Upon consideration, however, I think that as the threat was capable of being executed, and Jane Powell really parted with her money against her will, that is sufficient to constitute a larceny. There was evidence of such a taking, and the jury have found, in effect, that the money was obtained under a fear sufficient to make the giving of it an unwilling act. Consequently the taking was against the will of Jane Powell, and was therefore a larceny.

It is doubtful whether the direction would have been sufficient if there had been any doubt as to whether Jane Powell parted willingly with her money. The evidence shews however that there was no doubt on this point.

Conviction affirmed.

Attorneys for prosecution: Wright & Venn. Attorney for prisoner: F. J. Wilcocks, Liverpool.

Practice-Proof of Previous Conviction-Offences

relating to the Coin-Misdemeanour-Felony

-24 & 25 Vict. c. 99, ss. 12, 37.

By s. 10 of 24 & 25 Vict. c. 99, uttering counterfeit coin, knowing it to be counterfeit, is a misdemeanour. By s. 11, the possession of counterfeit coin, knowing it to be counterfeit, and with intent to utter the same, is a misdemeanour. By s. 12, whosoever having been convicted of (amongst others) any offence in the three preceding sections mentioned, shall afterwards commit any of the offences mentioned in those sections, shall be guilty of felony, and liable to punishment as therein specified. By s. 37, where any person shall have been convicted of any offence against any Act relating to the coin, and shall afterwards be indicted for any offence against this Act, it shall be sufficient, in any such indictment, after charging such subsequent offence, to state and to prove at the trial the previous conviction in the manner therein specified, and upon any such indictment the prisoner shall in the first instance be arraigned upon and tried for the subsequent offence only; and if he is found guilty the previous conviction may then be inquired into, but not before.

A. was indicted under s. 12 for feloniously having in his possession counterfeit coin, after a previous conviction for uttering counterfeit coin :

Held,-overruling Reg. v. Goodwin (10 Cox, C. C. 534), that s. 37 applies to a trial on an indictment under s. 12, and that therefore the previous conviction could not be proved until the jury had found A. guilty of the subsequent offence.

CASE stated by W. Forsyth, Q.C., commissioner:

At the last Leeds summer assizes William Martin was tried on the charge of being feloniously in possession of counterfeit coin, he having been before convicted of uttering counterfeit coin.

At the outset of the case the counsel for the prosecution proposed to give in evidence a certificate to prove the previous conviction of the prisoner. The counsel for the prisoner objected, and the commissioner, having regard to s. 37 of 24 & 25 Vict. c. 99, refused to receive the evidence at that stage of the case. Evidence was then given to shew that the prisoner was guilty of the subsequent offence charged, but the commissioner refused to allow evidence to be given of the previous conviction until the jury should give their verdict upon the subsequent charge. At the close of the case for the prosecution, the counsel for the prisoner contended that there was no case of felony to go to the jury, for that the offence of being in possession of coun

terfeit coin was, by s. 12 of 24 & 25 Vict. c. 99, made felony only when there had been a previous conviction of an offence relating to the coin, and no such previous conviction had been proved.

The case was then left to the jury upon the question whether the prisoner was guilty or not of the subsequent offence. The jury found a verdict of guilty. The prisoner was then asked whether he had been previously convicted as charged in the indictment, and he admitted that he had been so convicted. The commissioner deferred passing sentence, and the prisoner remained in custody.

The question was, whether the commissioner was right in rejecting the certificate when it was tendered in evidence, and in submitting to the jury the question whether the prisoner was guilty of the subsequent offence before the previous conviction had been proved against him. (1)

(1) 24 & 25 Vict. c. 99, s. 10, enacts that, "whosoever shall utter counterfeit coin, knowing it to be counterfeit, shall be guilty of a misdemea

nour.

s. 11 enacts that, "whosoever shall have in his possession counterfeit coin, knowing it to be counterfeit, and with intent to utter the same, shall be guilty of a misdemeanour."

s. 12-"Whosoever, after having been convicted of (amongst others) any such offence as in any of the last three preceding sections mentioned, shall afterwards commit any of the offences in any of the said sections mentioned, shall be guilty of felony, and liable to the punishment therein provided."

8 37:-"Where any person shall have been convicted of any offence against this Act, or any former Act relating to the coin, and shall afterwards be indicted for any offence against this Act, committed subsequent to such conviction, it shall be sufficient, in any such indictment, after charging such subsequent offence," to state in such indictment, and to prove at the trial in the manner therein specified, such previous conviction, "and the proceedings upon any indictment for committing any offence, after a previous conviction or convictions, shall be as follows; that is to say, the offender shall, in the first instance, be arraigned upon so much only of the indictment as charges the subsequent offence; and if he plead not guilty, or if the Court order a plea of not guilty to be entered on his behalf, the jury shall be charged, in the first instance, to inquire concerning such subsequent offence only, and if they find him guilty, or if, on arraignment, he plead guilty, he shall then, and not before, be asked whether he had been previously convicted, as alleged in the indictment, and if he answer that he had been so previously convicted, the Court may proceed to sentence him accordingly; but if he deny that he had been so previously convicted, ... the jury shall then be charged to inquire concerning such previous conviction, and in such case it shall not be necessary to swear the jury again. . . .”