*488

of the prosecution, that, as it had been determined, by his acquittal on the former indictment, that the papers he was charged with having embezzled were not exchequer bills at the time of the embezzlement, he could not be again charged with having embezzled the same papers, as being effects belonging to the Bank of England; he having committed no other act of embezzlement than that contained in the former indictment; for though by a remedial statute, 43 Geo. 3, c. 60, these defective papers had been rendered good and valid exchequer bills for civil purposes, yet, that statute having impliedly declared that these papers were, previously to the passing it, mere waste papers, and of no value at the time the embezzlement of them took place, it could not ex post facto make them valuable effects, within *the 15 Geo. 2, c. 13, s. 12; which word effects, it was contended, could apply only to things in themselves of intrinsic value. But Le Blanc, J., observed, that the word "securities" was used in the statute as well as the word "effects:" which showed that the Legislature intended that the statute should extend to other kinds of property than securities; the word "effects" being of a larger and more comprehensive meaning than the word "securities:" and he directed that the trial should proceed. The facts of the case were then proved; and the jury having found the prisoner guilty, the case was reserved for the consideration of the twelve judges. The important question submitted to them was, whether, on the true construction of the 15 Geo. 2, c. 13, s. 12, these papers, which were issued as exchequer bills, did, in point of law, come within the words "effects or securities," meant to be described in the Act? After able argument by counsel, and much consideration by the judges, at different conferences, the result of their mature deliberation was communicated by Lord Alvanley, C. J., who stated that the judges had not been unanimous upon this point, but that a majority of them were of opinion that the bills, or papers, were "effects or securities," within the true meaning of the Act, and that the prisoner was properly convicted. After alluding to the great object of the Legislature, in giving protection and security to the Bank of England, his lordship proceeded to state that the papers in question were papers of value; that though they might not, on the face of them, be of any descriptive legal value, yet that they carried about them such a consequence, at least, as might make their preservation of infinite importance to the bank; that the government of the country was pledged to pay them even as they were, the holders of them having as strong a claim upon the justice of the government for such payment as if they were technically correct in all their parts; and that they were, therefore, in the true meaning of the word, securities which might be rendered available to any persons having the legal right to them. He then observed, that the papers in question were not less to be deemed effects; which word was a very large and general term, and confined to no particular description of property, either in specie or value: and was, therefore, probably inserted in the Act, studiously, when the Legislature were placing a special guard around the bank; and also that the offence of embezzling the effects, or securities, mentioned in the Act, was not made larceny, where some value must attach on the thing taken, but was created a felony, which induced no necessity for any value being ascertained. He then put several cases to show that the judges had not found themselves driven to the extreme length of construing the word "effects" to extend such trifling articles as the stumps of old pens, or a piece of blotting paper (an absurdity which had been supposed in argument); he said that their judgment only determined that the words of the Act necessarily extended to such securities, or effects, as were entrusted to the officers and servants of the bank; and that the bills in question came under that description.(d)

*The 50 Geo. 3, c. 59, s. 1, reciting that, "it is most expedient that due [*489 provision should be made effectually to prevent the embezzlement of money or securities for money belonging to the public, by any collector, receiver, or other officer intrusted with the receipt, custody, or management thereof;" enacted, "that if any person or persons to whom any money or security for money shall be issued for public services, shall embezzle such money, or in any manner fraudulently apply

(d) Aslett's (second) case, 1 New Rep. 1; 2 Leach 958, and R. & R. 67. It was also decided in this case, that the 15 Geo. 2, c. 13, was not repealed by 39 Geo. 3, c. 85.

the same to his own use or benefit, or for any purpose whatever except for publie services," every such person shall be guilty of a misdemeanor.(e)

Sec. 2. "If any such officer, collector, or receiver so intrusted with the receipt, custody, or management of any part of the public revenues. shall knowingly furnish false statements or returns of the sums of money collected by him or intrusted to his care, or of the balances of money in his hands or under his control, such officer, collector, or receiver so offending, and being thereof convicted, shall be adjudged guilty of a misdemeanor, and shall be adjudged to suffer the punishment of fine and imprisonment, at the discretion of the court, and be rendered for ever incapable of holding or enjoying any office under the crown."

By the 24 & 25 Vict. c. 96, s. 69, "whosoever being employed in the public service of Her Majesty, or being a constable or other person employed in the police of any county, city, borough, district, or place whatsoever, shall steal any chattel, monry, or valuable securityf) belonging to or in the possession or power of Her Majesty, or intrusted to or received or taken into possession by him by virtue of his employment, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding fourteen years and not less than three years-or to be imprisoned for any term not exceeding two years, with or without hard lobor, and with or without solitary confinement.” (g)

Sec. 70. "Whosoever being employed in the public service of Her Majesty, or being a constable or other person employed in the police of any county, city, borough, district, or place whatsoever, and intrusted by virtue of such employment with the receipt. custody, management, or control of any chattel, money, or valuable security, (h) shall embezzle any chattel, money or valuable security which shall be intrusted to or received or taken into possession by him by virtue of his employment, or any part thereof, or in any manner fraudulently apply or dispose of the same or any part thereof to his own use or benefit, or for any purpose whatsoever except for the public service, shall be deemed to have feloniously stolen the same from Her Majesty, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding fourteen years and not *less than three years-or to be imprisoned for any term not exceeding two *490] years, with or without hard labor; and every offender against this or the last preceding section may be dealt with, indicted, tried, and punished either in the county or place in which he shall be apprehended or be in custody, or in which he shall have committed the offence; and in every case of larceny, embezzlement, or fraudulent application or disposition of any chattel, money, or valuable security in this and the last preceding section mentioned, it shall be lawful in the warrant of commitment by the justices of the peace before whom the offender shall be charged. and in the indictment to be preferred against such offender, to lay the property of any such chattel, money, or valuable security in Her Majesty."(?)

By sec. 71, (j) three distinct acts of embezzlement, fraudulent application, or disposition, committed within the space of six months, may be included in one indictment; and where the offence relates to money or valuable security, the money or security may be described simply as money, and the allegation will be sustained by proof of any amount, though it be not proved of what such amount was composed.

(e) This section was repealed by the 2 Wm. 4, c. 4.

(f) See sec. 1, ante, p. 266.

(g) This clause is new. Its object is to place the persons mentioned in it in the same position as ordinary clerks and servants, and it is framed so as to bear the same relation to the next following section as s. 67 does to sec. 68. As to hard labor, &c., see ante, p. 67.

(h) See sec. 1, ante, p. 266.

(i) This clause is taken from the 2 Will. 4, c. 4, ss. 1, 4, 5, with an insertion of words to include the clause in the 22 & 23 Vict. c. 32, s. 25, as to the police. The words of the former enactment were, "embezzle the same.' The words in italics were substituted as more correct. The clause is extended as to the venue, commitment, and indictment, so as to include cases falling within the preceding section. As to hard labor, &c., see ante, p. 67.

(j) Ante, p. 413.

By sec. 72,(k) any person indicted for embezzlement, fraudulent application or disposition of any property, may be convicted of larceny, if the offence turn out to be larceny, and vice versa.

By sec. 98,(7) principals in the second degree and accessories before the fact are punishable in the same manner as principals in the first degree; and accessories after the fact, except receivers, are punishable by imprisonment for any term not exceeding two years, with or without hard labor, and with or without solitary confinement.(m)

By the 25 & 26 Vict. c. 63, s. 16, "any person appointed to any office or service by or under any local marine board(n) shall be deemed to be a clerk or servant within the meaning of sec. 68 of the 24 & 25 Vict. c. 96."(o)

"If any such person fraudulently applies or disposes of any chattel, money, or valuable security received by him whilst employed in such office or service for or on account of any such local marine board, or for or on account of any other public board or department, to his own use or any use or purpose other than that for which the same was paid, entrusted to. or received by him, or fraudulently withholds, retains, or keeps back the same or any part thereof contrary to any lawful directions or instructions which he is required to obey in relation to such office or service, he shall be deemed guilty of embezzlement within the meaning of the said section:

"Any such person shall, on conviction of such offence as aforesaid, *be liable to the same pains and penalties as are thereby imposed upon any or servant for embezzlement:

clerk

[*491

"In any indictment against such person for such offence it shall be sufficient to charge any such chattel, money, or valuable security as the property either of the board by which he was appointed, or of the board or department for or on account of which he may have received the same; and no greater particularity in the description of the property shall be required in such indictment in order to sustain the same, or in proof of the offence alleged, than is required in respect of an indictment or the subject-matter thereof by the seventy-first section of the said last-mentioned Act."

An indictment upon the 2 Will 4, c. 4, was sufficient. although it did not allege that the prisoner embezzled the money whilst he was employed in the public service. A count charged that the prisoner, being at a certain time and place a clerk employed in the public service of Her Majesty, and by virtue of such employment entrusted with the receipt and custody of money, the property of Her Majesty, did then and there receive into his possession, by virtue of such employment as such clerk, certain money, the property. &c., and did then and there feloniously embezzle the same, and so did feloniously steal, take, and carry away the same; and it was objected that the count was bad, as it did not allege that the prisoner embezzled whilst he was such clerk; the allegation of his being clerk was confined to the fact of receiving the money, and did not necessarily extend to the time of the embezzlement. Coleridge, J.: “I am clearly of opinion that the indictment is good. If the fact of the prisoner's continuing clerk be necessary to the offence, the indictment, grammatically taken, would perhaps contain a sufficient averment of that fact. But it is by no means clear that an embezzlement (if such a case be possible) after a person ceased to be clerk or servant, of money received whilst he was such, would not be within the Act. The statute, in its words, does not necessarily imply that he should embezzle whilst clerk or servant, and if it does so imply it, the indictment which pursues the same terms also implies it."(p)

Evidence of acting in the capacity of an officer employed by the crown is sufficient to support an indictment under this statute, and the appointment need not be regularly proved.(g)

(k) Ante, p. 414.

(1) Ante, p. 67.

(m) As to the proceedings against accessories, see ante, vol. 1, p. 67, et seq.

(n) As to which, see the 17 & 18 Vict. c 104, s. 110, et seq.

(0) Ante, p. 412.

(p) Reg. r. Lovell, 2 M. & Rob. 236. See this case, ante, p. 408, as to the point whether

a servant of the crown was a servant within the 7 & 8 Geo. 4, c. 29, ss. 46, 47.

(7) Rex v. Borrett, 6 C. & P. 124 (25 E. C. L. R.); Reg. v. Townsend, C. & M. 178 (41 E. C. L. R.), infra.

We have seen that in several cases great discussion has taken place upon the question whether on an indictment under the 2 Wm. 4, c. 4, it was necessary to prove the embezzlement or misapplication of any particular sum, or whether it was not sufficient to prove a general deficiency in account, and the cases on this subject have been already introduced with those decided as to ordinary clerks or servants, in order that all the cases bearing on the question might be considered together, and therefore it is sufficient to refer to them here.(r)

*492] *Where a prisoner was indicted under the 2 Wm. 4, c. 4, s. 1, for embezzling money received by him by virtue of his employment as a letter carrier, and it appeared that he was a letter carrier employed by the post-office to deliver letters about Gloucester, and he had been in the habit of calling at the lodge of the county infirmary, and receiving letters there, and a penny upon each to prepay their postage, and his practice was to deliver these letters at the post-office; he sometimes omitted to call at the lodge, and then the letters were taken by some one else, and put in the post-office; and during his illness, a person who performed his duties had called at the lodge, received the letters and pennies, and delivered them at the post-office in the same manner as the prisoner. No evidence was given of the terms of the prisoner's appointment. There was evidence that the prisoner had embezzled some pence received with the letters. It was objected that there was no evidence that the pence were received by virtue of his employment. It was the mere voluntary act of the prisoner to go and receive the letters. Coleridge, J.: "I think there is evidence to go to the jury. The case does not rest simply on what was done by the prisoner, but there is also the fact that the person who performed his duties during his illness pursued the same course as the prisoner." (s)

*493]

*CHAPTER THE TWENTY-THIRD.

OF LARCENY AND EMBEZZLEMENT BY PERSONS IN THE POST-OFFICE; OF STEALING LETTERS; AND OF SECRETING BAGS OR MAILS OF LETTERS.

THESE offences were formerly punished under the provisions of the 5 Geo. 3, c, 25; the 7 Geo. 3, c. 50; the 42 Geo. 3, c. 81; and the 52 Geo. 3, c. 143; but the 1 Vict. c. 32, after the 1st of August, 1837, repeals the whole of the 5 Geo. 3, c. 25, "except so much thereof as relates to the postage on letters and packets conveyed by the post within the British dominions in America and the West Indies, and to any felony or other offence committed within such dominions:" the whole of the 7 Geo. 3, c. 50, " except so much thereof as relates to any felony or other of fence committed within the British dominions in America and the West Indies;" the whole of the 42 Geo. 3, c. 81; and so much of 52 Geo. 3, c. 143, " the post-office." And the punishment of these offences is now regulated by the 1 Vict c. 36, which came into operation on the 1st of August, 1837.(a)

as relates to

Sec. 25. "Every person employed by or under the post-office who shall, contrary to his duty, open, or procure or suffer to be opened a post le.ter, or shall wilfully detain or delay, or procure or suffer to be detained or delayed, a post letter, shall in England and Ireland be guilty of a misdemeanor, and in Scotland of a crime and offence, and being convicted thereof shall suffer such punishment by fine or imprisonment, or by both, as to the court shall seem meet: Provided always, that nothing herein contained shall extend to the opening or detaining or delaying of a (r) See Reg. v. Moah, Dears. C. C. 626, ante, p. 462; Reg. v. Lambert, 2 Cox C. C. 309, ante, p. 461.

(8) Reg. v. Townsend, C. & M. 178 (41 E. C. L. R.).

(a) The previous sections impose penalties on contravening the privilege of the postoffice, retaining ship letters, abusing the privilege of newspapers, on masters of ships not taking letter bags, on carelessness and misconduct of persons engaged in conveying or delivering letter bags, letters, &c., on collectors of tolls demanding toll or stopping mails; and provide as to the mode of proceeding for recovery of the penalties, &c.

post letter returned for want of a true direction, or of a post letter returned by reason that the person to whom the same shall be directed is dead or cannot be found, or shall have refused the same, or shall have refused or neglected to pay the postage thereof; nor to the opening or detaining or delaying of a post letter in obedience to an express warrant in writing under the hand (in Great Britain) of one of the principal secretaries of state, and in Ireland under the hand and seal of the Lord Lieutenant of Ireland.”

Sec 26. "Every person employed under the post-office who shall steal, or shall for any purpose whatever embezzle, secrete, or destroy, a post letter, shall in England and Ireland be guilty of felony, and in Scotland of a high crime and offence, and shall, at the discretion of the court, either be transported beyond the [*494 *seas for the term of seven years, (b) or to be imprisoned for any term not exceeding three years; and if any such post letter so stolen or embezzled, secreted or destroyed, shall contain therein any chattel or money whatsoever, or any valuable security, every such offender shall be transported beyond the seas for life." (c) Sec. 27. " Every person who shall steal from or out of a post letter any chattel or money or valuable security, shall in England and Ireland be guilty of a felony, and in Scotland of a high crime and offence, and shall be transported beyond the seas for life."(c)

Sec. 28. "Every person who shall steal a post letter bag, or a post letter from a post letter bag, or shall steal a post letter from a post-office, or from an officer of the post-office or from a mail, or shall stop a mail with intent to rob or search the same, shall in England and Ireland be guilty of felony, and in Scotland of a high crime and offence, and shall be transported beyond the seas for life."(c)

Sec. 29. "Every person who shall steal or unlawfully take away a post letter bag sent by a post-office packet, or who shall steal or unlawfully take a letter out of any such bag, or shall unlawfully open any such bag, shall in England and Ireland be guilty of felony, and in Scotland of a high crime and offence, and shall be transported beyond the seas for any term not exceeding fourteen years."(d)

Sec. 30, "with regard to receivers of property sent by the post and stolen therefrom," enacts, "that every person who shall receive any post letter or post letter bag, or any chattel or money or valuable security, the stealing or taking or embezzling or secreting whereof shall amount to a felony under the post-office acts, knowing the same to have been feloniously stolen, taken, embezzled, or secreted, and to have been sent or to have been intended to be sent by the post, shall in England and Ireland be guilty of felony, and in Scotland of a high crime and offence, and may be indicted and convicted either as an accessory after the fact or for a substantive felony, and in the latter case, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice; and every such receiver, howsoever convicted, shall be liable to be transported beyond the seas for life." (c)

Sec. 31, reciting that "post letters are sometimes by mistake delivered to the wrong person, and post letters and post letter bags are lost in the course of conveyance or delivery thereof, and are detained by the finders in expectation of gain or reward," enacts," that every person who shall fraudulently retain, or shall wilfully secrete or keep or detain, or being required to deliver up by an officer of the postoffice, shall neglect or refuse to deliver up a post letter which ought to have been delivered to any other person, or a post letter bag or post letter which shall have been *sent, whether the same shall have been found by the person secreting, [*495 keeping, or detaining, or neglecting or refusing to deliver up the same, or by any other person, shall in England and Ireland be guilty of a misdemeanor, and in Scotland of a crime and offence, and being convicted thereof shall be liable to be punished by fine and imprisonment." (e)

(b) Penal servitude for any term not exceeding seven, and not less than three years, by the 20 & 21 Vict. c. 3, ante, vol. 1, p. 4.

(c) Penal servitude for life, or for any term not less than three years, by the same Act: Ibid.

(d) Penal servitude for any term not exceeding fourteen, and not less than three years, by the same Act: Ibid.

(e) This provision is similar to the 42 Geo. 3, c. 81, s. 4 (now repealed), and would meet such cases as Rex v. Mucklow, R. & M. C. C. R. 160, ante, p. 241.