REG.

v.

WILLMETT.

blocks, some copper sheathing, and a number of nails and other old metal articles of small value, marked in the manner described in the act, the defendant not being a contractor with Her Majesty's principal Possession of officers or commissioners of the navy, ordnance, &c., or employed by 9 & 10 Will. 3, such contractor, &c.

naval stores,

c. 41.

It appeared that the defendant was a marine-store dealer in a large way of business at Chatham, and the articles mentioned in the indictment were found in various parts of the defendant's shop and warehouse, mixed up with a number of other articles of a similar description which did not appear ever to have borne any government mark, or ever to have been government property. With respect to the piece of copper sheathing, which was valued at about 2s. 6d., it appeared from the evidence of the defendant's foreman, (who was called upon the part of the prosecution), that it had come to the defendant's warehouse doubled up in a small compass and concealed in the middle of a bundle of rope-yarn and other matters, commonly called shakings, from some person at Sheerness, who had sent the bundle for sale. The witness stated that the bundle was bought by weight, that he himself weighed it, and that it weighed about three-quarters of a cwt., the price of which would be little more than 3s. 6d. He stated also, that the defendant was not present when the bundle was opened; that the piece of sheathing was thrown on one side, and as he believed had never been seen by the defendant.

At the close of the case for the prosecution,

M. Chambers and Ballantine, for the defendant, submitted that the prosecution had failed, there being no evidence that the defendant had knowingly and wilfully had the stores in his possession. They contended that the onus of showing fraud or misconduct upon the part of the defendant lay on the prosecutors; that here the first presumption was in the defendant's favour, inasmuch as he was a marine-store dealer, carrying on a trade well known to the law and regulated by special acts of Parliament, and the articles found upon his premises, and in respect of which he was indicted, were very old and of small value, and such as in the course of his trade would come to him in a regular and legal way. They referred to an anonymous case in Foster's Cr. L. 439, and to R. v. Banks, 1 Esp. 145.

COLTMAN, J. thought that it was a question for the jury whether the defendant knowingly had in his possession marked stores without legal excuse.

M. Chambers then addressed the jury, and insisted that it was essential that the prosecutors should make out that the defendant could not have come by the stores honestly, and that the question for them to consider was, whether the defendant came to the possession of the stores without any fraud or misbehaviour on his part.

Petersdorff and C. Pollock, for the Crown, intimated that they should contend that under this statute the jury were bound to convict the defendant, if the stores were found in the possession and under the control of the defendant, unless he produced a certificate

REG.

บ.

in conformity with stat. 9 & 10 Will. 3, c. 41, s. 4. They mentioned that the Recorder of London had so ruled in several unreported WILLMETT. cases tried at the Central Criminal Court.

Possession of

COLTMAN, J.-The reported case in Foster is upon this very naval stores, statute. It is unsafe to rely upon the mere recollection of unre- 9 & 10 Will. 3, ported cases. The jury must say whether the marked stores were in the defendant's possession knowingly.

Several witnesses were then called in support of the defence. The evidence of some of them was to the effect, that in government sales, both by the Admiralty and the Ordnance, nails and other pieces of metal of small value, and blocks, such as those included in the indictment, were frequently sold, mixed up with other articles, and without any certificate being given by the commissioners; and some express evidence was given that the canvass mentioned in the indictment had been sold (with other articles) from the Woolwich Dockyard to a person named Ledger, and by Ledger sold to the defendant. Upon the sale to Ledger a certificate had been granted him, not under the hand and seal of three commissioners of the navy, as required by 9 & 10 Will. 3, c. 41, s. 4, but signed by Commodore Sir James J. G. Bremer, K.C.B., K.C.H., superintendent of the Woolwich Dockyard. Ledger had not given any certificate under his own hand or seal to the defendant. Further evidence was given to show that some of the small metal articles had been purchased by the defendant at a sale made by the authority of the Board of Ordnance, and a certificate was produced for these, signed by Richard Byham, secretary to the Board of Ordnance, but not under the hand and seal of three principal officers or commissioners, as required by the act.

Petersdorff replied generally for the Crown, and with regard to these certificates, called upon the jury to reject them, as furnishing no legal answer to the indictment, inasmuch as they did not amount to the only excuse allowed by the statute.

c. 41.

COLTMAN, J. to the jury.-The only question for you now is, as Judgment. to the property found upon the defendant's own premises. A man is not criminally responsible for the acts of his servants, and if his servants improperly receive into his warehouse articles marked with the broad arrow, without his knowledge, he is not responsible. If the defendant himself purchased any of these articles, to which the certificates do not apply, knowing them to be marked with the broad arrow, then he is liable to be convicted, but not otherwise. Unless the goods were upon his premises with his knowledge, they were not in his possession at all. The account given of the sheathing, if true, illustrates what I say, that it is not everything found upon the defendant's premises which can be said to be in his possession. With regard to the two certificates, although they are not strictly in conformity with the act, the Government ought not to dispute their validity. If they apply to any part of these stores, so far as they apply they justify the possession by the defendant, and you ought not to be asked for a conviction in spite of them. With regard to the other articles, the question is, had the defendant

REG.

v.

WILLMETT.

possession of them, that is, was he aware of them? If you think that it is not proved that he knew they were there, or that it is not proved that he knew they were marked with the broad arrow, it will be your duty to acquit him.

Verdict-Not guilty.

RBG.

v.

LEONARD.

False pretences.

CENTRAL CRIMINAL COURT.

DECEMBER SESSION, 1847.

December 18.

REG. v. LEONARD. (a)

False pretences-Evidence-Indictment.

On an indictment for false pretences, it was proved that the prisoner was foreman to the prosecutor, and that as such foreman it was his duty to keep an account of the work done by the men, and to obtain at the end of the week a cheque from his master for the sum due to the men for wages, and pay them accordingly. On the day in question he demanded and received a cheque for a larger amount than the correct one, alleging that such larger amount was due, and he appropriated the balance to his own use.

Held, that the evidence supported the charge.

Quare whether an indictment which charges the defendant with having obtained an order for the payment of money with intent to cheat and defraud the prosecutor of part of the proceeds of the same is within the 7 & 8 Geo. 4, c. 29, s. 53 ?

THE

HE first count of the indictment alleged, that the said John Leonard was in the service and employment of one Eli Richards, and that it was the duty of the said John Leonard, as such servant, to keep and render to the said Eli Richards, a true and correct account of the work done and performed by divers workpeople employed by the said Eli Richards, in the way of his business; and that the said John Leonard, being an evil-disposed person, and contriving and intending to cheat and defraud the said Eli Richards of his moneys and property, on the 12th of November, 1847, with force and arms, at the parish aforesaid, and within the jurisdiction of the said court, unlawfully and knowingly did falsely pretend to the said Eli Richards, that the account kept by him the said John Leonard, of the work done by divers workpeople in the service of the said Eli Richards, during the week

(a) Reported by B. C. ROBINSON, Esq., Barrister-at-Law.

ending on the 12th of November, then instant, was a true and correct account of the work done by them for and on account of the said Eli Richards, and that the sum of 147. 1s. 2d. was due in respect of work performed for and on account of the said Eli Richards during the said week, by means of which said false pretences the said John Leonard did then and there unlawfully and fraudulently obtain of and from the said Eli Richards an order for the payment of money, to wit, for the payment and of the value of 14. 1s. 2d., the property of the said Eli Richards, with intent to cheat and defraud him of the same. Whereas the account kept by him, the said John Leonard, of the work done by divers workpeople in the service of the said Eli Richards during the week ending on the 12th of November then instant, was not a true and correct account of the work done by them for and on account of the said Eli Richards. And whereas the sum of 147. 1s. 2d. was not then due in respect of work performed for and on account of the said Eli Richards during the said week against the form of the statute, &c.

REG.

v.

LEONARD.

False

pretences.

2nd Count. That the said John Leonard being such servant 2nd count. and such being his duty as in the first count mentioned, afterwards, to wit, on the 19th of November, in the year aforesaid, with force and arms, &c., unlawfully and knowingly did falsely pretend to

said Eli Richards, that the account kept by him, the said John Leonard, of the work done by the said William Triplett during the week ending on the said 19th of November, was a true and correct account of the work done by him, the said William Triplett, for and on account of the said Eli Richards, and of the money due to him, the said William Triplett, and that the said William Triplett was entitled to the sum of 11. 4s. 3d. for the work performed by him for and on account of the said Eli Richards during the said last-mentioned week, by means of which said false pretences in this count mentioned, the said John Leonard did then and there unlawfully and fraudulently obtain of and from the said Eli Richards one order for the payment of money, to wit, for the payment and of the value of 167. 12s. 3d. the property of the said Eli Richards, with intent to cheat and defraud him of part of the proceeds thereof, to wit, of the sum of 6s. 6d. Whereas the said lastmentioned account kept by the said John Leonard of the work done by the said William Triplett, during the week ending on the said 19th of November, was not a true and correct account of the work done by him for and on account of the said Eli Richards, and of the money due to the said William Triplett. And whereas the said William Triplett was not entitled to the sum of 17. 4s. 3d. for the work performed by him the said William Triplett, for and on account of the said Eli Richards during the said last-mentioned week, against the form of the statute in such case made and provided.

3rd Count. That the said John Leonard being such servant, and 3rd count. such being his duty, as in the first count mentioned, afterwards,

to wit, on the 26th day of November, in the year aforesaid, with

REG.

v.

LEONARD.

False

pretences.

force and arms, &c., unlawfully and knowingly did falsely pretend to the said Eli Richards that the account kept by him, the said John Leonard, of the work done by the said William Triplett and one Benjamin Triplett during the week ending the said 26th of November, was a true and correct account of the work done by them, the said William Triplett and Benjamin Triplett, for and on account of the said Eli Richards, and of the money due to them, the said William Triplett and Benjamin Triplett; and that the said William Triplett and Benjamin Triplett were entitled to the sum of 21. 1s. for the work performed by them for and on account of the said Eli Richards during the said last-mentioned week, by means of which said false pretences in this count mentioned, the said John Leonard did then and there unlawfully and fraudulently obtain of and from the said Eli Richards an order for the payment of money, to wit, of the value of 14l. 16s. 7d. the property of the said Eli Richards, with intent to cheat and defraud him of part of the proceeds thereof, to wit, of the sum of 8s. 9d.; whereas the said lastmentioned account kept by him, the said John Leonard, of the work done by the said William Triplett and Benjamin Triplett during the week ending on the said 26th of November, was not a true and correct account of the work done by them, for and on account of the said Eli Richards, and of the money due to the said William Triplett and Benjamin Triplett; and whereas the said William Triplett and Benjamin Triplett were not entitled to the sum of 21. 1s. for the work performed by them, the said William Triplett and Benjamin Triplett, for and on account of the said Eli Richards, during the said last-mentioned week, against the form of the statute in such case made and provided.

The 4th count was to the same effect.

It was proved upon the trial that the prosecutor engaged the prisoner as foreman over the men employed by him, and that it was the prisoner's duty to keep an account of the work the men performed, and of the wages due to them, and on the Friday in each week to lay before the prosecutor an account, showing the amount earned by each workman, upon which the prosecutor gave him a cheque upon his bankers for the total sum so shown to be due to the several workpeople for the week's work. In support of the first count it was proved that the prisoner made out and produced to the prosecutor an account, by which it appeared that the total amount due and payable on the 12th of November, was 147. 1s. 2d., and that the sum included a false charge of 7s. which was not in fact due.

That the prosecutor, confiding in the accuracy of the account, gave the prisoner a cheque for 147. 1s. 2d. which the prisoner immediately cashed, and applied the said sum of 7s. to his own use, but properly disposed of the remainder.

The second count was supported by similar evidence, and had reference to a cheque of 167. 12s. 3d. obtained by the prisoner on the 19th of November, out of which he applied to his own use the sum of 6s. 6d. falsely stated in his account to be due to one