not called to prove the terms thereof, but only his managing clerk, who knew them through repute alone, having been informed of them by his employer, it was held that there was no evidence to go to the jury that the prisoner was servant to the prosecutor: R. v. Taylor, 10 Cox, 544. Money received by the defendant from his master himself for the purpose of paying it to a third person, and appropriated by the defendant, is larceny: R. v. Peck, 2 Russ. 449; R. v. Smith, R. & R. 267; R. v. Hawkins, 1 Den. 584; R. v. Goodenough, Dears. 210. In R. v. Grove, 1 Moo. 447, a majority of the Judges (eight against seven) are reported to have held that an indictment for embezzlement might be supported by proof of a general deficiency of monies that ought to be forthcoming, without showing any particular sum received and not accounted for. See also, R. v. Lambert, 2 Cox, 309; R. v. Moah, Dears. 626. But in R. v. Jones, 8 C. & P. 288, where, upon an indictment for embezzlement, it was opened that proof of a general deficiency in the prisoner's accounts would be given, but none of the appropriation of a specific sum, Anderson, B., said: "Whatever difference of opinion. there might be in R. v. Grove, (ubi supra) that proceeded more upon the particular facts of that case than upon the law; it is not sufficient to prove at the trial a general deficiency in account; some specific sum must be proved to be embezzled, in like manner as in larceny some particular article must be proved to have been stolen. See also, R. v. Lister, Dears. & B. 118; R. v. Guelder, Bell, 284; Greave's note, 2 Russ. 455; R. v. Chapman, 1 C. & K. 119, 2 Russ. 460, and R. v. Wolstenholme, 11 Cox, 313; R. v. Balls, 12 Cox, 96. On a trial for embezzlement, held, that evidence of a general deficiency having been given the conviction was right, though it was not proved that a particular sum coming from a particular person on a particular occasion, was embezzled by the prisoner: R. v. Glass, 1 L. N. 41; R. v. Slack, M. L. R. 7 Q. B. 408. But a general deficiency alone is not sufficient to support an indictment for larceny: R. v. Glass M. L. R. 7 Q. B. 405. If it was sufficient before the Code to support an indictment for embezzlement, it would seem that it would be sufficient now to support an indictment for larceny. A conductor of a tramway car was charged with embez zling three shillings. It was proved that on a certain journey there were fifteen threepenny fares, and twenty-five twopenny fares, and the conductor was seen to give tickets to each fare and to receive money from each, but what sum did not appear. He made out a way bill for the journey debiting himself with only nine threepenny fares and sixteen twopenny fares. The mode of accounting was to deliver the way bills for each journey to a clerk, and to hand in all the money received during each day on the following morning. The prisoner's money should have been £3 18. 9d., according to his way bills for the day, but he paid in only £3 Os. 8d. Held, that there was sufficient evidence of the receipt of seven shillings and eleven pence, the total amount of fares of the particular journey, and of the embezzlement of three shillings, part thereof: R. v. King, 12 Cox, 73. Where the indictment contains only one count, charging the receipt of a gross sum on a particular day, and it appears in evidence that the money was received in different sums on different days, the prosecutor will be put to his election, and must confine himself to one sum and one day: R. v. Williams, 6 C. & P. 626. The prisoner, not having been in the employment of the prosecutor, was sent by him to one Milner with a horse as to which Milner and the prosecutor, who owned the horse, had had some negotiations, with an order to Milner to give the bearer a cheque if the horse suited. On account of a difference as to the price the horse was not taken and the prisoner brought him back. Afterwards the prisoner, with out any authority from the owner, took the horse to Milner and sold it as his own property, or professing to have a right to dispose of it, and received the money, giving a receipt in his own name. Held, that a conviction for embezzlement could not be sustained as the prisoner, when he received the money, did not receive it as a servant or clerk but sold the horse as his own and received the money to his own use: R. v. Topple, 3 R. & C. (N. S.) 566. PUNISHMENT UNDER SECTIONS 308, 309, 310. 320. Every one is guilty of an indictable offence and liable to fourteen years' imprisonment who steals anything by any act or omission amounting to theft under the provisions of sections three hundred and eight, three hundred and nine and three hundred and ten. See ante, ss. 308, 309, 310, pp. 341 & 342. PUBLIC SERVANTS REFUSING TO DELIVER UP BOOKS, ETC. 321. Every one guilty of an indictable offence and liable to fourteen: years' imprisonment who, being employed in the service of Her Majesty or of the Government of Canada or the Government of any province of Canada, or of any municipality, and intrusted by virtue of such employment with the keeping, receipt, custody, management or control of any chattel, money, valuable security, book, paper, account or document, refuses or fails to deliver up the same to any one authorized to demand it. R. S. C. c. 164, s. 55. (Amended). See s. 623 as to indictment. The repealed clause made. this offence an embezzlement. The present one does not make it a theft. "Valuable security" defined, s. 3. A special enactment as to postmasters is contained in s. 101, c. 35, R. S. C. Indictment. that A. B. on at being employed in the service of the Government of Canada as a and intrusted by virtue of such employment with the books and papers of his office, did unlawfully refuse (or fail) to deliver up the said books and papers to C. D., then and there duly authorized to demand the said: books and papers. It would seem that after an officer has ceased to be in the employment of Her Majesty, it might be contended that this section does not apply. CRIM. LAW-24 STEALING BY TENANTS AND LODGERS. 322. Every one who steals any chattel or fixture let to be used by him or her in or with any house or lodging is guilty of an indictable offence and liable to two years' imprisonment, and if the value of such chattel or fixture exceeds the sum of twenty-five dollars to four years' imprisonment. R. S. C. c. 164, s. 57. 24-25 V. c. 96, s. 74 (Imp.). Fine, s. 958. If the indictment be for stealing a chattel it may be, by s. 625 post, in the common form for larceny, and in case of stealing a fixture the indictment may be in the same form as if the offender were not a tenant or lodger, and the property may be laid either in the owner or person letting to hire. There may be a conviction of an attempt to commit any offence mentioned in this section, upon a trial for that offence, s. 711, post. By common law a lodger had a special property in the goods which were let with his lodgings; during the lease he, and not the landlord, had the possession; therefore the landlord could not maintain trespass for taking the goods; in consequence, the taking by the lodger was not felonious: Meere's Case, 2 Russ. 519; R. v. Belstead, R. & R. 411. . Hence, the statutory enactments on the subject. STEALING TESTAMENTARY INSTRUMENTS. 323. Every one is guilty of an indictable offence and liable to imprisonment for life who, either during the life of the testator or after his death, steals the whole or any part of a testamentary instrument, whether the same relates to real or personal property, or to both. R. S. C. c. 164, s. 14. 24-25 V. c. 96, s. 29 (Imp.). 66 Testamentary instrument" defined, s. 3. a certain will and testamentary instrument of one J. N. unlawfully did steal. (Add counts varying description of the will, etc.) The cases of R. v. Skeen, Bell 97, and R. v. Strahan, 7 Cox, 85, are not now law: Greaves Cons. Acts, 126. STEALING DOCUMENTS OF TITLE TO LANDS OR GOODS. 324. Every one is guilty of an indictable offence and liable to three years' imprisonment who steals the whole or any part of any document of title to lands or goods. R. S. C. c. 164, s. 13. 24-25 V. c. 96, s. 28 (Imp.). See s. 3 for definitions of " title to lands or goods." Fine, s. 958. The words in italics are new. Indictment. a certain document of title to lands, the property of J. N., being evidence of the title of the said J. N. to a certain real estate called in which said real estate the said J. N. then had and still hath an interest, unlawfully did steal. STEALING JUDICIAL DOCUMENTS. 325. Every one is guilty of an indictable offence and liable to three years' imprisonment who steals the whole or any part of any record, writ, return, affirmation, recognizance, cognovit actionem, bill, petition, answer, decree, panel, process, interrogatory, deposition, affidavit, rule, order or warrant of attorney, or of any original document whatsoever of, or belonging to any court of justice, or relating to any cause or matter begun, depending or terminated in any such court, or of any original document in any wise relating to the business of any office or employment under Her Majesty, and being or remaining in any office appertaining to any court of justice, or in any government or public office. R. S. C. c. 164, s. 15 (Amended). 24-25 V. c. 96, s. 30 (Imp.). Indictment for stealing a record.— a certain judgment-roll of the Court of Our Lady the Queen, before the Queen herself, unlawfully did steal. Stealing rolls of parchment will be larceny at common law, though they be the records of a court of justice, unless they concern the realty: R. v. Walker, 1 Moo. 155; but it is not so if they concern the realty: R. v. Westbeer, 1 Leach, 13. A commission to settle the boundaries of a manor is an instrument concerning the realty, and not the subject of larceny at common law: R. v. Westbeer, loc. cit. An indictment describing an offence within 32 & 33 V. c. 21, s. 18, as feloniously stealing an information taken in a police court, is sufficient after verdict: R. v. Mason, 22 U. C. C. P. 246. The destroying, taking, concealing, etc., judicial documents is provided for by ss. 353 & 354, post. |