If the property has ever been in the possession of the master or of any of his other servants, the case is not within the stat. R. T. R. 1830. Where the property has been in possession of master or an Servant not authorised to A clerk of A. received from another clerk of A. 31. to pay, other servant. among other things, for the insertion of an advertisement: he paid 10s. and charged 20s., and embezzled the difference. On case, the judges thought the case not within the stat., because A. had had possession of the money by the hands of his other clerk. Tr. T. 1830, R. v. Murray, MS. Bayley, B. S. C. 1 M. 276. Embezzlement by a servant not authorised to receive is not within 7 & 8 G. 4. R. E. T. 1832. Prisoner was servant to a carrier, employed to lock up goods: he had no authority to receive money. He was standing in his perty. master's counting-house, when one of his master's debtors came in, and supposing him to be a clerk authorised to receive money, paid him 8., and he gave a receipt, but embezzled the money. On indictment inde, and case, the judges (12) held, that as he had no authority to receive money, the case was not within 7 & 8 G.4. c. 29. and that the conviction was wrong. E. T. 1832, R. v. Thorley, MS. Bayley B. S. C. 1 M. 343. A servant may be found guilty of embezzlement, though he is not a general servant, and is employed to receive in a single instance only. R. M. T. 1832. Prisoner was employed by the prosecutor to keep some beasts for him in Smithfield market, and on the sale of a cow and calf, to drive them to the purchasers, and receive the price, 167.; prisoner received the money, and embezzled it: he was employed by the prosecutor as a drover in this instance. On case, the judges (12) were unanimous, that the prisoner was a person employed within the act to receive, and conviction right. M. T. 1832, R. v. Hughes, MS. Bayley B. S. C. 1 M. 370. See R. v. Spencer, supra. Since the decision in the case of R. v. Hughes the following case has been reported: — Prisoner had been employed by prosecutor, sometimes as a regular labourer and sometimes as a roundsman, and had been sent several times to a bank for money: on the day in question, he was not working for prosecutor, but was to be paid 6d. for getting a check cashed at the Bicester bank. This the prisoner did, but made off with the money. Parke J. (after consulting Taunton J.) held, that the prisoner was not a servant of the prosecutor within the meaning of the stat., and that this therefore was no embezzlement. R. v. Freeman, Oxford Sp. Ass. 1833, 5 Carr. & P. 834. It is, however, to be observed, that it does not appear that either the case of R. v. Hughes, or of R. v. Spencer, was cited to the court in R. v. Freeman; and further, that R. v. Hughes had been decided in the preceding M. T. by the unanimous opinion of twelve judges. See also the cases of R. v. Stock, and R. v. M'Namee, supra, p. 424. receive the pro Person employed as a servant in a single instance only. S. P. In an indictment on this stat., against a servant for embezzling Indictment money received on his master's account, it is not sufficient to must state in follow the words of the statute; but there must be a positive whom the proallegation, that the money was the property of the prosecutor, as in other cases of larceny. Rex v. M'Gregor, O. B. Sept. 1801, perty is. Indictment need not aver that prisoner feloniously embezzled, if it conclude that he feloniously stole, &c. Trial. County. Receiving in one county, denying such receipt in another county. S. P. 7 G. 4. c. 64. § 12. offence begun in one county completed in another. Owner deliver ing his property with intent of parting with it absolutely. C. C. R. 23. 3 Bos. & Pull. 106. 2 East's P.C. 576. Rex v. Floyd, The indictment charged that the prisoner was employed as a clerk to A., and that by virtue of his employment, he received from B. on account of his master 9l. 18s. 9d. without shewing of what monies that sum was made up, and that he fraudulently embezzled and secreted the same, omitting the word feloniously; and so it concluded that the jurors say, that he did feloniously embezzle, steal, take, and carry, &c. Objection was made, that in the introductory part of the indictment it was not alleged that he did feloniously embezzle, &c.; and that therefore the indictment failed to shew that he had committed a felony, and that unless it was so shewn in the body of the indictment, it was not enough that it was so alleged in the conclusion of it. The judges, however, considered it to be sufficient that it was stated in the conclusion, and the indictment was holden good. R. v. Crighton, cor. Thomson B., Lancaster Sum. Ass. 1803, and before all the judges at Serjeants' Inn, M. T. 1803, C. C. R. 92. and cited per Bayley J., 3 M. & S. 555. But, in order to found a judgment upon the statute, the indictment must be specially drawn, so as to bring the case within it. Jones's case, Winton Spring Ass. 1800, 2 East's P. C. 576. Where the prisoner received money in the county of Salop, and denied such receipt in the county of Stafford, it was holden by the judges to be evidence to shew that the original receipt was with intent to embezzle, and that the trial was properly had in the county of Salop. Some of the judges were of opinion that the offence was triable in either county, as referable to the original taking in the one, and not accounting, but denying the receipt, when called upon in the other. Hobson's case, Shrewsbury Lent Ass. 1803 & E. T. 1803, 1 East's P. C. Add. xxiv. 2 Russ. 217. C. C. R. 56. And in a case where the prisoner received the money in Surrey, and the same day being called upon to account for it in Middlesex, denied that he had ever received it, there being no evidence of the prisoner having done any act to embezzle in the county of Surrey, the judges held that he was properly indicted in the county of Middlesex. Taylor's case, O. B. 1803, C. C. R. 63. 3 Boss. & Pull. 596. 2 Leach, 974. But by 7 G. 4. c. 64. § 12., where a felony or misdemeanor shall be committed on the boundaries of two or more counties, or within 500 yards of such boundary, or shall be begun in one county and completed in another, every such offence may be tried in any of the said counties as if it had been actually and wholly committed therein. Where the owner delivers his property to another, intending to part with it altogether and absolutely, the taking and disposing of it will not amount to felony, although the party receiving it intended to defraud the owner, and induced him to part with it by false representation. 2 East's P. C. c. 16. § 102. p. 668. § 103. p. 669. 2 Russ. 109. Justin Harvey was indicted for horse stealing: and it appeared Obtaining delivery of a horse in evidence that the prisoner met the prosecutor at a fair; with the sold, on promise horse, which he had brought there for the purpose of selling it; and to return imme- being known to him, proposed to him to become the purchaser. They walked together in the fair; and, upon a view of the horse, diately and pay the prosecutor told the prisoner he should have it for 87.; and for it; and calling his servant, ordered him to deliver it to the prisoner: who riding off and immediately mounted the horse, telling the prosecutor that he not returning; would return immediately and pay him; the prosecutor replied no felony. very well; and the prisoner rode away with the horse, and never returned.-Gould J. ordered an acquittal; for here was a complete contract of sale and delivery: the property as well as the possession was entirely parted with. R. v. Harvey, Chelmsford Ass. 1787, cor. Gould J., 1 Leach, 467. 2 East's P. C. 669. So, also, where the prisoner, with a fraudulent intent to obtain Taking goods goods, ordered a tradesman to send him a piece of silk, to be paid by purchase for on delivery; and, upon the silk being sent accordingly, gave though giving the servant who brought it bills which were mere fabrications, false bills in and of no value: it was holden not to be larceny, on the ground that the servant parted with the property by accepting such payment as was offered, though his master did not intend to give the prisoner credit. Park's case, 0.B. Jan. 1794, 2 Leach, 614. 2 East's P. C. 671. The prisoner bespoke a box of goods, telling the tradesman he meant to pay him ready money; the box was left at a coachoffice ready for departure the day following, and an appointment was made for the payment of the bill at a coffee-house; the prisoner never went to the coffee-house, but had, in the meantime, carried off the box from the office: Held to be larceny; the jury finding, that it was the prisoner's intention, ab initio, to get the goods without payment, and convert them to his own use. H. T. 1828, R. v. Campbell, 1 R. & M. 179. The prisoner agreed for the purchase of some oxen at a fair, and was to pay for them at an adjoining inn; he never appeared there, but in the meantime took away the beasts and sold them again in the fair; and the custom was, to pay before they were delivered: Held to be larceny, the jury finding, that he never intended to pay for the beasts. E. T. 1828, R. v. Gilbert, 1 R. & M. 185. Where the prisoner agreed for the purchase of goods to be paid for on delivery, and he was afterwards allowed to take them from the wharf, on his promise to pay for them before they were lodged in his house; on the way there, however, he took them in another direction, and disposed of them. The jury found, that he never meant to pay, but to defraud the owner. Held larceny. H. T. 1830, R. v. Pratt, 1 R. & M. 250. The prisoner procured some chests of tea to be delivered to him at a carrier's office, by falsely pretending that he was the person to whom they were addressed. The jury found that he knew they were not his property, and intended to steal them; and held to be larceny, as the carrier's servant had no authority to part with the ownership to the prisoner. E. T. 1826, R. v. Longstreeth, 1 R. & M. 137. payment. The prosecutor having been inveigled by sharpers to bet with Property parted them, and suffered by them to win in the first instance, was after- with as for a wards stripped of a large sum, by losing a bet; and the whole bet fairly lost. transaction was found by the jury to have been a preconcerted scheme to get the prosecutor's money; but it was holden by the judges, on case reserved, not to be a felonious taking, as the pro No difference secutor parted with the property in his money, under an idea that it had been fairly won. Case of Nicholson, Jones, and Chappel, O. B. 1794, 2 Leach, 610. 2 East's P. C. 669. It makes no difference in these cases, that the credit was ob where delivery tained by fraudulently using another's name, to whom, in truth, the credit was intended to be given, if the delivery of the goods were made by the owner, or any other having the disposing power for that purpose. 2 East's P. C. 672. from the owner upon credit obtained under another's name. Obtaining silver on pre tence of sending a half guinea presently in exchange; no felony. Obtaining by fraud from a hatter a hat in tended for another person. One writing a letter in the name of another to a third person to borrow money, which he obtains by that fraud, is only guilty of misdemeanor. Prisoner fraudulently getting back goods which he had rawned. Thus, where the prisoner went to a tradesman's house, and said she came from a Mrs. Cook, a neighbour, who would be much obliged if he would let her have half a guinea's worth of silver, and that she would send the half guinea presently. The prisoner obtained the silver, and never returned; and this was holden no felony. This was, in truth, a loan of the silver, upon the faith that the amount would be repaid at another time. It was money obtained on a false pretence; and the same determination has been made in similar cases at the O. B. Coleman's case, O. B. June, 1785, 2 East's P. C. 672. The prisoner discovered that Paul had ordered a hat of Beer, and he sent a boy to Beer's for it in Paul's name, and obtained it. He was indicted for stealing it. And one count stated it to be Beer's property, another Paul's. It was urged that he should have been indicted for obtaining it by false pretences: and on a case reserved, the judges held the conviction could not be supported. Not on the first count, because Beer had parted with the ownership; and not on the second, because Paul had never had possession. R. v. Adams, Taunton Sp. Ass. 1812, cor. Chambre J. C. C. R. 225. James William Atkinson was indicted (M. T. 1799), for stealing two bank-notes, the property of William Dunn, against the statute. It appeared that the prisoner sent one Dale (to whom he was unknown) with a letter directed to Dunn; bidding Dale to tell Dunn that he brought the letter from Mr. Broad; and to bring the answer to him (the prisoner) in the next street, where he would wait for him. Dale accordingly carried to Dunn the letter, which was written in the name of Broad, a friend of Dunn's, soliciting the loan of 31. for a few days; and desiring that the money might be inclosed back in a letter immediately. Dunn thereupon sent the bank-notes in question, inclosed in a letter directed to Broad, and delivered the same to Dale, who delivered them to the prisoner, as he was first ordered. The letter turned out to be an imposition. It was objected at the trial that this was no felony, because the absolute dominion of the property was parted with by the owner, though induced thereto by means of a false and fraudulent pretence. And on reference to the judges after conviction, all present held that it was no felony; on the ground that the property was intended to pass by the delivery of the owner; and that this case came within the stat. 33 H. 8. c. 1. against false tokens, which particularly speaks of counterfeit letters. Atkinson's 's case, O. B. Sept. 1799, cor. Le Blanc J. MS. C.C.R. 2 East's P. C. 673. The prisoner having pledged certain articles with a pawnbroker, got them back from his managing servant, by pretending to leave in their place some valuable jewels, though, in fact, they were common stones: a case being reserved, the judges held that as the servant, who had a general authority from his master, parted with the property and ownership, and not merely with the possession, it did not amount to felony. Hil. Term, 1826. R. v. Jackson, 1 R. & M. 119. ers, or agents, R. v. Walsh, Esq. M. P., H. T. 1812, C. C. R. 215. 4 Taunt. R. v. Walsh. 258. 2 Leach, 1054. Walsh, a stock-broker, advised Sir Thomas Brokers, bankPlumer to sell stock, which he did, and the money was paid unto Sir T. P.'s bankers; Sir T. P. then gave W. a check on his banker for 22,500l., that he might buy exchequer bills therewith. W. bought exchequer bills to the amount of 60007., and embezzled the rest of the money. It did not appear that W. had any intention to embezzle when he advised Sir T. P. to sell the stock, but afterwards, foreseeing that he would give a check to buy exchequer bills, he formed his plan for embezzling part. When he got the check, he got the money from the bankers. Walsh was indicted for stealing, first, the check, and, secondly, part of the money received upon it at the banker's. And such money was described, first, as Sir T. P.'s, and, secondly, as the banker's. The jury found that he had the design to embezzle when he took the check from Sir T. P. The case was twice argued, and the judges were unanimous that it was no felony: first, because there was no fraud or contrivance to induce Sir T. P. to give the check; secondly, because it could not be called his goods and chattels, and was of no value in his hands; thirdly, because he had never had possession of the money received at the banker's, so that it could not be called his money; and, fourthly, because the bankers were discharged of the money on paying it on the check, so that they were not defrauded, and it could not be said the money was stolen from them. No judgment was ever publicly pronounced in this case, but the prisoner was liberated. c. 29., embezzlement by By 7 & 8 G. 4. c. 29. § 49. it is made a misdemeanor, if any 7 & 8 G. 4. money, or security for payment of money, shall be entrusted to any banker, merchant, broker, attorney, or other agent, with directions in writing for the application thereof, and he shall, in violation of good faith, and contrary to the purpose so specified, convert to his own use or benefit such money, &c. or any part thereof. See this tit. post. A letter containing a banker's check was sent by the post to T. M., but the address to his place of residence being wrong, it was delivered by the postman to another T. M., who appropriated it to his own use, though it clearly appeared that he knew it was not intended for him. The judges held the conviction to be wrong, as it did not appear that the prisoner had any animus furandi when he first received the letter. E. T. 1827, R. v. Macklow, 1 R. & M. 160. bankers, brokers, &c. Letter containing a check de livered to a wrong person. the owner does not part with the property, but If the owner has not parted with the property in the goods, but Delivery, where only with the possession of them, the question of larceny still remains open; and will depend upon the fact, whether, at the time of the alleged felonious taking, the owner had parted with the possession of the goods in such a manner, and to such an extent, as to exclude the idea of trespass. For if the owner of the goods parted with the possession of them without fraud practised by the taker, and if, after the owner had so parted with the possession of them, nothing was done to determine the privity of contract under which only with the possession of the goods. |