was sent away on pretence of getting more; held felony : the property not being transferred. Hench's case, Hil. T. 1811. Aickle's case, 1 Leach, 294. taken place respecting the stockings. During Hudson's absence, the prisoners decamped with the goods, which were proved to have been afterwards pawned by one of them. The judges were of opinion that the conviction was right; for the whole of the prisoners' conduct manifested a pre-conceived design to obtain a tortious possession of the property and the verdict of the jury imported that in their belief the evil intention preceded the possession of the goods by them. But that even independent of that, there did not appear a sufficient delivery to change the property. Where the owner of goods sent them by his servant to be delivered to A., and the prisoner fraudulently procured the delivery of them to himself, by pretending to be A., it was holden to be Larceny. Wilkins's case, O. B. 1789. 1 Leach, 520. 2 East's. P. C. 673. Obtaining possession from a person who has the charge of goods by pretending to be the servant of a person who has bought them, is felony. Robert Hench was indicted for stealing a chest and 59 pounds weight of tea, which, in one count of the indictment, were stated as the property of James Layton and William James Thompson; and in another count, as the property of the East India Company. The facts were that Messrs. Layton & Co., who were tea brokers, had purchased the chest of tea in question, No. 7100, at the East India House, but had not taken it away, when the prisoner who was no way employed by them, went thither, and going up to the place where the request papers were kept, selected one of them, and then proceeded, with the paper in his hand, as if to look for a chest of tea corresponding with the number on the paper. The servant in the India House, who had the care of the request papers, seeing him so engaged, went up to him, took the paper which was in his hand, and seeing the number 7100 upon it, pointed to a chest with a corresponding number, and said that was the chest he wanted; and then returned the paper to him, in order that he might go to the permit office, from whence he shortly afterwards returned with a permit to the India House, where the same servant who had the care of the request papers received the permit from him, and asked him whose partner he was? and upon his answering "Noton's," returned the permit to him again, and entered the name of Noton in the book. The prisoner then took away the chest of tea. Upon this evidence the jury found the prisoner guilty; when an objection was taken by his counsel, that, as the possession of the property was obtained by a regular request note and permit, the offence could only be considered as a misdemeanor; and the court reserved the point for the consideration of the judges, who were clearly of opinion that the offence amounted to felony. a The prisoner agreed with the prosecutor to discount bill of exchange for him, and the bill was delivered into the prisoner's hands. The prisoner then said, that if the prosecutor would come to his lodgings, he would give him the cash. The prosecutor did not go himself, but sent his clerk, whom he desired not to lose sight of the prisoner till he had got the money. The prisoner contrived to get away from the clerk with the bill, and without paying the money. This was holden to be lar ceny; the jury finding a preconcerted design by the prisoner to get the bill into his possession with intent to steal it. It should be observed that in this case, the prosecutor never gave the prisoner credit for the property of the bill, and therefore did not part with the legal possession. Where money or other property is parted with for the performance of a certain engagement, and the party instead of complying with such engagement converts the same to his own use, he is guilty of felony. land, Sum. Ass. Wood B. MS. Gurney Walsh's case. The prisoner was indicted for stealing 351. the property of Wil- R. v. Oliver, liam Smith. The prosecutor had entrusted the prisoner with Northumbernotes to the amount of 35l. to procure him gold in lieu thereof, but having got possession of the notes, he went away with them and did not return with the gold as he promised to do. Wood B. held that the prosecutor having parted with his notes upon the faith of his having gold and silver in return, and the prisoner not having complied with the trust reposed in him, he was guilty of felony. The learned judge further said, that a parting with the property in goods could only be effected by contract, which required the assent of two minds, but that in this case there was not the assent of the mind, either of the prosecutor, or of the prisoner; the prosecutor only meaning to part with his notes on the faith of having the gold in return, and the prisoner never meaning to barter, but to steal. So where it appeared that the prisoners decoyed the prosecutor into a public house, and there introduced the play of cuttingcards, and that one of them prevailed upon the prosecutor (who did not play on his own account,) to cut the cards for him, and then under pretence that the prosecutor had cut the cards for himself, and had lost, another of them swept his money off the table, and went away with it: it was considered to be one of those cases which should be left to the jury to determine quô animô the money was obtained, and which would be felony, in case they should find that the money was obtained upon a preconcerted plan to steal it. If credit be given for property for ever so short a time, no felony can be committed in converting it. So where the delivery is by way of pledge or security, the property in the thing pledged remains in the owner, and therefore larceny may be committed of it, if such delivery were obtained fraudulently and with intent to steal. a 4 Taunt. 274. 2 Leach, 1072. R. v. Horner and Others. 1 Leach, 270. Cald. 295. 2 East's P. C. 677, 678. By way of pledge or security, Patch's case, 1782. 2 East's P. C. 678. (S. C. I Leach, 238.) Pretending to find a jewel, in which the prose John Patch was indicted for stealing a silver watch, gold seal, &c. and 7s., the property of J. Bumstead. The prisoner and two others joined Bumstead in a street in London; and after walking a little way with him, one of them stooped down and picked up purse which contained a ring, and a receipt for 1477. purporting to be the receipt of a jeweller for a rich brilliant diamond ring. The prisoner proposed that they should go into a public house, which they accordingly did, to consider in what manner the prize should-be divided amongst them. After various proposals the prisoner at length asked the prosecutor if it would be agreeable inducing him to to him to take the ring into his own possession, and to deposit take charge of his money and watch, which he had before interrogated him it, and to depoabout, as a security to return it upon receiving his portion of sit with the its value. The prosecutor assented, and signed a written agree- &c. until the cutor as present at the time was to share, and finder his watch latter should redeem the jewel by paying a cer tain sum of money; and this done with intent to steal ment, dictated by the prisoner; that when the prisoner or either of the two other men returned the watch and money and 707., he would re-deliver to them the purse and the ring. The prosecutor accordingly laid the watch and money mentioned in the indictment on the table, and received the ring. The prisoner beckoned the prosecutor out of the room upon pretence of speaking to him in the watch, &c.; private, and in the mean time the other two men went off with held larceny. the property. Their abrupt departure alarmed the prosecutor, but the prisoner told him not to be uneasy, for he knew the two men very well, and would take care that he should have his watch and money again; and when the prisoner was apprehended, he wanted to make it up. The ring was valued at 10s. It was objected that this amounted only to a fraud. But the court, upon the authority of Pear's case, referred it to the jury to consider, Whether the whole transaction were not a preconcerted scheme feloniously to obtain the prosecutor's property? And Gould J. who tried the prisoner, left it to the jury, Whether the prisoner and the other two men were not all in concert together to procure by such a pretext any man's property whom they might meet, and to embezzle it; which in plain words was to steal it ? The jury found the prisoner guilty, and he was sent to the Thames for three years. Infra. Taking goods by delivery of owner with feJonious intent. 2 East's P. C. 685. Pear's case, O. B. Sept. 1779. 2 East's P. C. 685. (S. C. 1 Leach, 212.) Hiring a horse on pretence of taking a journey, but in truth with in tent to steal it, and evidencing such felonious intent by imme diately selling The principle of this case has been subsequently recognised in the cases of Rex v. Humphrey Moore, 1 Leach, 314. 2 East's P. C. 679. reserved by Mr. Serjeant Adair, Recorder at the O. B. Apr. Sess. 1784, and Rex v. John Watson, 2 Leach, 640. 2 East's P. C. 680., reserved by Perryn B. at the O. B. December Sess. 1794, for the opinion of the judges; and both prisoners were sentenced to transportation for seven years. It is peculiarly the province of the jury to determine with what intent any act is done; and therefore, though in general he who has a possession of any thing on delivery by the owner cannot commit felony thereof; yet that must be understood, first, where the possession is absolutely changed by the delivery, which has before been considered; and, next, which is the present object of enquiry, where such possession is not obtained by fraud, and with a felonious intent. For if, under all the circumstances of the case, it be found that a party has taken goods from the owner, though by his delivery, with an intent to steal them, such taking amounts to felony. This principle is illustrated by the following cases. John Pear was indicted for stealing a black mare, the property of Samuel Finch. On the 2d July 1779, the prisoner hired the mare of Finch, who lived in London, for that day, in order to go to Sutton in Surry, and told him that he should return at eight o'clock the same evening. Finch, before he let the prisoner the mare, enquired of him where he lived, and whether he were a housekeeper: to which he answered, that he lived at No. 25, in King-street, and was only a lodger. The prisoner not returning as he had promised, the prosecutor went the next day to enquire for him according to the direction he had given: but no such person was to be found. It turned out that the prisoner had in the afternoon of the same 2d of July sold the mare in Smithfield. In summing up this evidence to the jury, Mr. Justice Ashhurst, who tried the prisoner, told them, that if they were of opinion that possession of it, the prisoner hired the mare with an intent of taking the journey the horse as mentioned, and afterwards changed that intention; then, as she soon as the was sold whilst the privity of contract subsisted, they ought to party obtained acquit the prisoner. But if they were of opinion that the journey is larceny. was a mere pretence to get the mare into his possession, and that he hired her with an intention of stealing her; they ought to find him guilty: and he would save the point for the opinion of the Judges. The jury found the prisoner guilty. This case was very solemnly discussed at Lord Ch. J. De Grey's house, on 4th Feb. 1780, and on the 22d of the same month, Mr. B. Perryn delivered the opinion of the Judges at the O. B. at considerable length. A very copious and accurate report of which being given by Mr. East, in the 2d vol. of his Treatise of the P. C. page 685, it is only necessary to state that ten judges, out of eleven, were of opinion, that if a person obtained the delivery of a thing by fraud and falsehood, intending at the time that he so obtained the delivery, to steal it; upon the principle of the common law and adjudged cases, his offence would be felony. That in the present case, the original intention of the prisoner in hiring the horse had been properly left to the jury, and as they had found that it was felonious, the parting with the possession had not changed the nature of the property, and that the prisoner was therefore guilty of felony. (a) George Charlewood was indicted at the O. B. in Feb. Sess. 1786, before Gould J. and Perryn B. for stealing a gelding of John Houseman. The prosecutor was a livery-stable keeper in Crown-street, St. Ann's, Soho; and, on the 4th October 1785, was applied to by the prisoner, a post-boy, for a horse, in the name of a Mr. Ely, saying that there was a chaise going to Barnet, and that Mr. Ely, wanted a horse for his servant to accompany the chaise and return with it. The horse was accordingly delivered to the prisoner by the prosecutor's servant about nine o'clock in the morning. The prisoner mounted him, and on going out of the yard, said, he was going no further than Barnet. He accordingly proceeded towards Tottenham Court Road, which led to Barnet, and also, though in some degree circuitously, to Mr. Ely's house. Between three and four o'clock in the afternoon of the same day the prisoner sold the horse in Goodman's Fields for a guinea and a half, including the bridle and saddle. The horse was much injured, and appeared to have been rode very hard. The purchaser almost immediately sold his bargain for 21. 15s. The court observed to the jury that the judges in Pear's case under similar circumstances with the present, had determined that if the jury R. v. Charlewood, 1 Leach, 409. Sess. Pap. No. 200. 2 East's P. C. 689. Obtaining a horse by pretending that anwanted other person hire it to go to steal it; and (a) On the debate in this case, Ashhurst J. said, Wherever there is a real and bonâ fide contract and a delivery, and afterwards the goods are converted to the party's own use, that is not felony. But if there be no real and bona fide contract, if the understanding of the parties be not the same, the contract is a mere pretence, and the taking is a taking with intent to commit felony. 2 East's P. C. 688. And per Eyre B. where goods are delivered upon a false token, and the owner meant to part with the property absolutely, and never expected to have the goods. returned again it might be difficult to reach the case otherwise than through the statutes (H 8. and G 2.;) Aliter, where he parted with the possession only; for there if the possession were obtained by fraud, and not taken according to the agreement, it was on the whole a taking against the will of the owner, and if done animo furandi, was a felony. 2 East's P. C. 689. Major Semple's Sept. 1786. cor. No. 671. (2 Leach, 420. S. C.) 2 East's P. C. 691. One obtains chaise under pretence of hiring it for three weeks or a month, suggest were satisfied under all the circumstances, that a person, at the time he obtained another's property, meant to convert it to his own use, it was felony. That there was a distinction, however, to be observed in this case, though it was so nice that it might not be obvious to common understandings; for that if they thought that the prisoner, at the time he hired the horse for the purpose of going to Barnet, really intended to go there, but finding himself in possession of the horse, afterwards determined to convert it to his own use, instead of proceeding to the place to which the horse was hired to go, it would not amount to a felonious taking. That there was yet another point for their consideration; for although the prisoner really went to Barnet, yet being obliged by the contract to re-deliver the horse to the owner upon his return to London; if they thought that he performed the journey and returned to London (a); and after such return, instead of delivering it to the owner, converted it to his own use, he was thereby guilty of felony; for the end and purpose of hiring the horse would be then over. The jury found the prisoner guilty on the first point, that at the time he hired the horse he intended to steal it and he was afterwards executed. pro Major Semple was indicted for larceny of a post-chaise; and the following facts appeared. The prosecutor, Mr. Lycett, was a coachmaker, who let out carriages to hire. The prisoner was a gentleman who lodged in the neighbourhood, and had before Rec. Sess. Pap. hired a carriage of the prosecutor, for which he had paid. On the 1st of September 1785, the prisoner, who then passed by the name of Major Harold, hired the chaise in question of the secutor, saying that he should want it for three weeks or a month, as he was going a tour round the North; and it was agreed that he should pay at the rate of 5s. a-day during that time; and a possession of a price of 50 guineas was talked about in case he should determine to purchase it on his return to London, which was suggested by the prisoner; but no agreement took place on the subject of the purchase. In a few days afterwards the prisoner took the chaise from Mr. Lycett's with his own horses; and it was in evidence that he was driven in it from London to an inn at Uxbridge, where he ordered a pair of horses, and went from thence to Bulstrode, and returned to the same inn, where he took fresh horses; but where he went with the chaise afterwards did not appear. No tidings were obtained of him till a year afterwards, when he was apprehended on another charge. It was attempted to distinguish this from Pear's case and Aickles's case, inasmuch as in those cases the parties had never obtained the legal possession of the property delivered to them: but that in the present case the prisoner had obtained the chaise upon a contract, which it was not proved that he had broken; for the chaise was hired generally for three weeks or a month, and not to go to any certain place for the mere understanding that it was for the purpose of making a tour round the north made no part of the contract. During that time, therefore, he had a complete dominion ing his intention to go on a tour, and he departs with it, and is not heard of for a year after wards, when he is apprehended: and then he gives no account of the chaise: Held evidence from whence the jury may infer that he originally took it under the pretence of a hiring with intent to steal it. (a) Quære? For part of the contract was to return the horse to the owner in London; and therefore the contract, if genuine and valid in the first instance on the part of the prisoner, would subsist after his mere return to London. |