Gale.-According to the cases of Newhall v. Holt, 6 M. & W. 662, and Slatterie v. Pooley, Id. 664,(a) I must concede that admissions made by a party as to the contents of written documents are evidence against him; but I submit that the 41st section of the act of Parliament, 1 & 2 Will. 4, c. lxvii. (loc. and pers.), does not sufficiently show the duties of the office of treasurer without some further evidence. The second point is, whether this was an embezzlement, and whether the prisoner was a servant of the Guardians of the Poor. *Embezzlement *302] is a statutory offence; and before those statutes, if a servant received money on account of his master, and took it away before it reached his master's hands, it was no larceny. Embezzlement is a larceny of that which has never come to the legal possession of the owner. In the case of Williams v. Scott, 1 Cr. & Mee. 675, it appeared that the plaintiff had been chosen and sworn in at a court leet held by a corporation to be chamberlain of certain commonable lands within the parish of St. Mary, in Warwick. The duties of the chamberlain, who received no remuneration, were to collect moneys from the commoners and other persons using the commonable lands; to employ the moneys so received in keeping the lands in order; to account at the end of the year to two aldermen of the corporation, and to pay over any balance in his hands to his successors in office; and it was held that the plaintiff was not "a servant, or a person employed in the capacity of a servant, within the stat. 7 & 8 Geo. 4, c. 29, s. 47, as to an embezzlement." In that case Baron Bayley said, Id. p. 682, "The cases where a person has been held to be a servant within this act seem all to be plainly distinguishable from the present. They are cases where the person takes his office immediately from the person who is to have the control over him as master, and where the servant receives money for him, which the master has a right to have paid over to him then. Here he has a right to retain the money for the corporation during his continuance in office." In cases of embezzlement, the particular thing embezzled is what should have gone into the possession of the master. In the case of Rex v. Tyers, R. & R. C. C. 402, which was a case on the old stat. 39 Geo. 3, c. 85, it was held that, in cases of embezzlement, the particular coin must be stated in the indictment.

ALDERSON, B.-Here, if the general balance of the accounts had been in favour of the prisoner, he would have had a right to retain.

*303] *Gale. The prisoner might have confused all the money together in his own pocket; and the guardians have now appointed a banking firm to be treasurers; and it cannot be contended that they could be indicted for embezzlement. There was a case of Regina v. Grove, 1 M. C. C. 447, where a bankers' clerk was indicted for

(a) In that case it was held, that a parol admission by a party to a suit is always receivable in evidence against him, although it relates to the contents of a deed or other written instrument, and even though the contents of such deed or instrument be directly in issue in the cause.

embezzlement upon a general deficiency, but in that case the judges were nearly equally divided: and in the case of Williams v. Stott, Baron Bolland said (1 Cr. & Mee. 678), "Some years ago a person, who held a situation under the trustees of Greenwich Hospital, and who had embezzled to a great amount, was indicted; and Mr. Justice Burrough, before whom he was tried, after much consideration, held that the prisoner did not come within the statute, on the ground of his being a sworn officer, and not an ordinary servant." In the case of Rer v. Squire, R. & R. C. C. 349, 2 Stark. N. P. C. 349, the overseers of a township had employed the prisoner as their accountant and treasurer; and he received and paid all the money receivable and payable on their account, and he received a sum and embezzled it; and it was held that he was a clerk and servant within the stat. 39 Geo. 3, c. 85; but he was a person employed by the overseers, and was not an officer. In the case of Rex v. Townsend, ante, p. 168, an assistant overseer of a district of a union was appointed by the guardians of the union under an order of the Poor Law Commissioners. He received money from the rate-payers of a township, which he ought to have paid over to the bankers of the overseers of the township; instead of which he embezzled it. It was held, that he was not indictable for embezzling this money as the money of the overseers, as he was not their servant; and that he was not indictable for this embezzlement as the servant of the guardians, because, if he was their servant, it was not their money. *In none of these cases had the prisoner any option as to paying [*304

over the money.

COLERIDGE, J.-How do you apply that to the case of the cashier, who might have received money from one person, and with it have paid the check of another?

Gale. The guardians had no right to call on the prisoner to pay over this money at all. The banker might at once have called on the cashier to pay over any particular sum that he had received, but the duty of a treasurer is to deal with the balance only.

ALDERSON, B.-Suppose that it had been proved, that, when the prisoner received a particular sum, he said that he meant to embezzle it? Gale. I submit, that, unless he was bound to pay over the particular money received, his retaining it cannot be embezzlement. His duty was to pay over a balance. In the cases of Rex v. Beacall, 1 C. & P. 310, 454, 1 M. C. C. 15, Rex v. Jenson, 1 M. C. C. 434, and Regina v. Callahan, 8 C. & P. 154, questions arose as to whether a clerk or servant appointed by one set of persons could be considered as clerk or servant to another set of persons; but in each of those cases that the prisoner was a clerk or servant could not be disputed.

WILDE, C. J.-How do you distinguish this case from the case of Rex v. Squires, as he was not to pay over any particular sum received, but only to account generally?

VOL. II.-26

Gale.-In Squire's case, this point was not taken.

*305]

*WILDE, C. J.-But, in that case, the judges held it to be embezzlement.

Gale. The case of Squires was very fully considered in that of Williams v. Stott; and I submit that an embezzlement is a felonious asportation, without a felonious taking. By the 39th section of the stat. 1 & 2 Will. 4, c. lxvii. (loc. and pers.), the treasurer cannot be clerk to the guardians; and here the prisoner is indicted as a servant, he acting as clerk, if he acted as anything but treasurer.

Lord DENMAN, C. J.-Mr. Hill, if we should think it necessary, we will hear you.

Hill, for the prosecution, was not heard.

THE case was afterwards considered by the judges, who were unanimously of opinion that the conviction was right; and the prisoner was sentenced to be transported for ten years.

*306] *OXFORD SUMMER CIRCUIT, 1846.(a)

OXFORD ASSIZES.

BEFORE MR. JUSTICE MAULE.

REGINA v. ROWLAND DOSSETT. July 13.

Although evidence offered in support of an indictment for felony be proof of another felony, that circumstance does not render it inadmissible if the evidence be otherwise receivable.

A. was indicted for wilfully setting fire to a rick, by firing a gun close to it, on the 29th of March: Held, that evidence that the rick was also on fire on the 28th of March, and that the prisoner was then close to it, having a gun in his hand, is receivable to show that the fire on the 29th was not accidental.

ARSON. The prisoner was indicted for having, on the 29th of March, 1846, feloniously set fire to a rick of wheat-straw, the property of William Cox.

It appeared that the rick was set on fire by the prisoner's having fired a gun very near to it; and it was proposed on the part of the prosecu

(a) This circuit was chosen by the Lord Chief Justice Tindal and Mr. Justice Maule; but in consequence of the illness of the Lord Chief Justice, Mr. Serjt. Gaselee came this circuit in his stead, and Mr. Justice Maule sat as the Senior Judge at Abingdon, at Oxford, and at Worcester, Mr. Serjt. Gaselee sitting as the Junior Judge. At Stafford, the Lord Chief Justice Wilde joined the circuit, and sat there as the Senior Judge, and continued to do so till the end of the circuit, Mr. Justice Maule sitting as the Junior Judge.

tion to go into evidence to show that the rick had been on fire on the 28th of March, and that the prisoner was then close to it with a gun in his hand.

J. Jefferys Williams, for the prisoner.-I submit that this evidence is not admissible. It is seeking to prove one felony by another; and it ~ is in effect asking the jury to *infer that the prisoner set fire to the rick on the 29th, because he did so on the 28th. The firing of the rick on the 28th, if wilfully done, was a distinct felony.

[*307

MAULE, J.-Although the evidence offered may be proof of another felony, that circumstance does not render it inadmissible, if the evidence. be otherwise receivable. In many cases it is an important question whether a thing was done accidentally or wilfully. If a person were charged with having wilfully poisoned another, and it were a question whether he knew a certain white powder to be poison, evidence would be admissible to show that he knew what the powder was because he had administered it to another person, who had died, although that might be proof of a distinct felony. In the cases of uttering forged bank notes knowing them to be forged, the proofs of other utterings are all proofs of distinct felonies. I shall receive the evidence.

The evidence was given. (a)

(a) In cases of uttering forged notes knowing them to be forged, and of receiving stolen goods knowing them to be stolen, it is the constant practice to give evidence of other utterings and of other receivings by the prisoner, with a view of showing a guilty knowledge; and in the case of Rex v. Voke, R. & R., C. C. 531, it was held by the twelve Judges, that if, upon an indictment for maliciously shooting, it be questionable whether the shooting was by accident or design, evidence may be given that the prisoner at another time intentionally shot at the same person. In the case of Rex v. Clewes, 4 C. & P. 221, the prisoner was indicted for the murder of Richard Hemmings, and it was opened that great enmity subsisted between Mr. Parker, the rector of Oddingley, and his parishioners, and that the prisoner had used expressions of ennrity towards Mr. Parker, and had said he would give £50 to have him shot; and that Mr. Parker was shot by Richard Hemmings; and that the persons who had employed Hemmings to shoot Mr. Parker, fearing that they should be discovered as having hired him to shoot Mr. Parker, murdered Richard Hemmings, and that Hemmings' bones had been found in a barn occupied by the prisoner. Evidence was given of declarations of the prisoner, showing that he entertained malice against Mr. Parker; and it was proposed to show that Hemmings was the person by whom Mr. Parker had been murdered. It was objected that this evidence as to the murder of Mr. Parker was not receivable; but Mr. Justice Littledale said—“ I think I must receive the evidence on the part of the prosecution; it is put thus:-that the prisoner and others employed Hemmings to murder Mr. Parker, and that he being detected, the prisoner and others then murdered Hemmings to prevent a discovery of their own guilt. Now, to ascertain whether or not that was so in point of fact, it is necessary that I should receive evidence respecting the murder of Mr. Parker." And his lordship received the evidence.

In the case of Mr. Robert Sawle Donnall, a surgeon, at Falmouth, who was tried at Launceston on the 31st of March, 1817, before Mr. Justice Abbott, for the murder of his mother-in-law, Mrs. Elizabeth Downing, by poisoning her with arsenic, administered on the 3d of November, 1816, Lena, Serjt., for the prosecution, said, in his opening, "At an earlier period than the day which is stated in the indictment (the 3d of November, 1816), namely, as early as the 19th of October, which is upwards of a fortnight before, this lady visited her son-in-law and daughter, and had drank tea with them, upon which occasion she was seized with a sickness and heat in the stomach, and was much indisposed; but whether anything were taken then or not, you cannot form a judgment till you hear the whole of the case. She was ill that night in somewhat the same manner as she was taken ill afterwards, but to whatever it was owing, she had recovered her entire health, and was on the 3d of November as well as ever she was, and her health was

*308]

*309]

*The defence was, that the firing of the rick was accidental.
Verdict, Not guilty.

*Keating, Churchill and Powys, for the prosecution.
J. Jefferys Williams, for the prisoner.

[Attorneys J. Scarlett Price, and Brunner.]

generally good. Upon the 3d of November she went again to drink tea at the house of the priBoner." "You will find that, upon her returning home after the visit on Sunday, the 3d of November, she was immediately taken ill in the same manner, but more violent than before, and was particularly affected with great heat in the stomach; and you will be informed that at the end of fourteen hours she expired, without any particular apparent cause, and without the action of anything that in nature brings persons to an end, or which operates gradually in death." Evidence was given, that, on the 19th of October, the deceased drank tea at the house of the prisoner; and that, on her coming home at between nine and ten o'clock on that night, she was suffering from sickness, purging, and cramp; and that she had similar symptoms, but to a more violent degree, after she had been to drink tea at the house of the prisoner on the 3d of November. No objection was made to the reception of the evidence as to the symptoms of the deceased on the 19th of October; and as to this part of the case Mr. Justice Abbott, in summing up, said,— "Now, in order to show you that the prisoner did in fact administer arsenic to Mrs. Downing, the deceased, the counsel for the prosecution offer this fact to your consideration, namely, that on the 19th of October preceding her death, the deceased having gone in perfect health to the house of Mr. Donnall, was afflicted during the night with symptoms of the same kind, although not to the same degree as upon her visit of the 3d of November, which is to lead you to suppose that at this first visit some attempt of that kind was made, although not to that extent." The counsel for the prosecution were Mr. Serjt. Lens, Mr. (afterwards Mr. Justice) Gaselee, and Mr. Casberd. The counsel for the prisoner being Mr. Serjt. Pell, and Mr. (afterwards Lord) Gifford. In the case of John Tawell, who was tried at Aylesbury on the 12th of March, 1845, before Baron Parke, for the murder of Sarah Hart, by poisoning her on the 1st of January, 1845, by prussic acid administered in porter, it was opened by Byles, Serjt., for the prosecution, that, in the month of September, 1844, the prisoner had visited the deceased and had sent for porter, that soon afterwards, when the prisoner had left the house the deceased was very sick and ill; and the learned Serjeant stated that he should adduce evidence of these facts, to show that an attempt had been made by the prisoner to poison the deceased on an occasion prior to the 1st of January, 1845. Evidence was given that on the 30th of September, 1844, the prisoner came to the house of the deceased, and that the deceased desired a witness, named Charlotte Howard, to get a bottle of porter, which she did, and that after the prisoner had left the deceased's house the deceased was very sick and ill, and that part of the porter and two glasses remained on the table when the witness went into the room, and that the witness drank the remainder of the porter without any ill effects. No objection was made to the reception of this evidence; and Baron Parke, in his summing up, adverting to this part of the case said, “You have evidence of the prisoner's visiting the deceased on the 30th of September, when porter was sent for, and the deceased, after drinking some of it, became exceedingly ill. Now, if prussic acid was administered on that occasion, it must have been dropped into the glass from which she drank, as there was no portion in the *porter which remained in the bottle, and which was drank by *310] the witness without any ill effects." The counsel for the prosecution were Mr. Serjt. Byles and Mr. Prendergast; the counsel for the prisoner being Mr. (afterwards Sir Fitzroy) Kelly, Mr. Gunning, and Mr. O'Malley.

For the foregoing note of the cases of Rex v. Donnall and Regina v. Tawell, we are indebted to the kindness of Mr. Prendergast.