« EdellinenJatka »
be wanting. Therefore no delivery of the
The learned commentator has already noticed the 21 Hen. VIII. c. 7. making the embezzlement of goods above the value of forty shillings, felony, when intrusted to a servant by his master. The act extends only to such persons who were servants to the owner of the goods, both at the time of their delivery, and when they were stolen. 1 Hawk. c. 33. s. 12. 2 East P. C. 562. To bring the case within the act, the goods must have been delivered to the servant to keep for the master, and the words "kept to the use of the master," imply that they are to be returned to the master. 2 East P. C. 562. The act does not extend to goods, the actual property of which were not in the master at the time, and therefore, it is said, that if the property be chang ed, as by melting the money down, or malting corn, and then it be taken away, it is not within the statute. 1 Hawk. c. 33. s. 15. 2 East P. C. 563. sed quære. See 1 Hawk. c. 33. s. 15. The act only extends to where the owner has actually had them in his possession, and not where his servant has merely receiv. ed them to his use. No wasting or consuming the goods is within the act, however wilful. Hawk. b. 1. c. 33. s. 14.
goods from the owner to the As if A lends B a horse, and
2dly. Where the offender unlawfully acquired the possession of goods as by fraud or force, &c. with intent to steal them, the owner still retaining his property in them, such an offender will be guilty of larceny in embezzling them. Therefore in addition to the instances mentioned in the text, hiring a horse on pretence of taking a journey, and immediately selling it, is larceny, because the jury found the defendant acted animo furandi, in making the contract, and the parting with the possession had not changed the nature of the property. 2 East P. C. 685. 1 Leach, 212; and see 2 Leach, 420. 2 East P. C. 691. So obtaining a horse by pretending another person wanted to hire it to go to B., but in truth with intent to steal it, and not going to B., but taking the horse elsewhere and selling it, is larceny. 1 Leach 409. 2 East P. C. 689. So where the prisoner intending to steal the mail bags from a post-office, procured them to be let down to him by a string from the window of the post-office, under pretence that he was the mail guard, he was held guilty of larceny. East P. C. 603. It is larceny for a person hired for the special purpose of driving sheep to a fair, to convert them to his own use, he having the intention so to do at the time of receiving them from the owner. 1 Ry. & M. C. C. 87. And where a man ordered a pair of candlesticks from a silversmith, to be paid for on delivery, to be sent to his lodgings, whither they were sent accordingly, with a bill of par cels, by a servant, and the prisoner contriving to send the servant back under some pretence, kept the goods, it was holden larceny, cited in 2 Leach, 420. And if a sale of goods is not completed, and the pretended purchaser absconds with them, and from the first his intention was to defraud, he is guilty of stealing, 1 Leach, 92; and to obtain money from another by ring-dropping, is a similar offence, if there was an original design to steal, 1 Leach, 238. 2 Leach, 572: and where the owner of goods sends them by a servant, to be delivered to A., and B. pretending to be A., obtains them from him, B. is guilty of larceny. 2 East P. C. 673. So where the prisoner pretending to be the servant of a person who had bought a chest of tea, deposited at the E. I. company's warehouse, got a request paper and permit for the chest, and took it away with the assent of a person in the company's service who had the charge of it; this was held felony. R. & Ry. C. C. 163. So to obtain a bill of exchange from an indorsee, under a pretence of getting it discounted, is felony, if the jury find that the party did not intend to leave the bill in the possession of the defendant, previous to receiving the money to be obtained on his credit, and that he undertook to discount with intent to convert it to his own use, 1 Leach, 294; and it seems, that if a person procure possession of a house with an intent to steal the lead affixed to it, he may be indicted on the 4 Geo. II. c. 32. for the statutable larceny. 2 Leach, 850.
In all these cases the defendant's original
he rides away with him: or, if I send goods by a carrier, and he carries them away; these are no larcenies (h). But if the carrier opens a bale or
(b) 1 Hal. P. C. 504
design in obtaining the goods was felonious, and the owner never parted with his property therein, for where either is not the case there can be no larceny, as will appear from the following instances:-Thus where a house was burning, and a neighbour took some of the goods, apparently to save them from the flames, and afterwards converted them to his own use, it was holden no felony, because the jury thought the original design honest. 1 Leach, 411. notes. And it is certain, that if the property in effects be given voluntarily, whatever false pretence has been used to obtain it, no felony can be committed. 1 Hale P. C. 506. R. & R. C. C. 225. S. P. Thus obtaining silver on pretence of sending a half guinea presently in exchange is no felony. 2 East P. C. 672. So writing a letter in the name of a third person to borrow money, which he obtains by that fraud, is only a misdemeanor, 2 East P. C. 673; and it makes no difference in these cases that the credit was obtained by fraudulently using the name of another, to whom it was intended to be given, 1 Leach, 303. notes. 2 East P. C. 673. R. & R. C. C. 225; and if a horsedealer delivers a horse to another on his promise to return immediately and pay for it, the party's riding off and not returning is no felony. 1 Leach, 467. 2 East P. C. 669. So if a a tradesman, sells goods to a stranger as for ready money, and sends them to him by a servant who delivers them, and takes in payment for them bills which prove to be mere fabrications, this will be no larceny, though the party took his lodgings for the express purpose of obtaining the goods by fraud, because the owner parted with his property. 2 Leach, 614. So fraudulently winning money at gaming, where the injured party really intended to play, is no larceny, though a conspiracy to defraud appear in evidence. 2 Leach, 610. So brokers, bankers, or agents embezzling securities deposited with them for security or any special purpose, are not guilty of larceny, 4 Taunt. 258. 2 Leach, 1054. R. & R. Č. C. 215. S. C.; but this decision occasioned the 52 Geo. III. c. 63. to be passed, making it a misdemeanor in brokers, bankers, and others, to embezzle securities deposited with them for safe custody or for any special purpose, in violation of good faith, and contrary to the special purpose for which they were deposit ed, see the act, infra. Thus in all cases where a voluntary delivering by the prosecutor is the defence to be relied on, two questions arise, first, whether the property was parted with by the owner, secondly, whether supposing it was not, whether the prisoner at the time he obtained it conceived a felonious design. In the first case, no fraud or breach of trust can make a conversion larceny; in the second, the complexion of the offence must depend on the felonious design.
3dly. Where offender lawfully acquired possession and qualified property in goods, under
colour of bailment, but with intention of stealing them, and privity of the bailment has been de termined either by wrongful act of offender or by intention of parties, if he afterwards embezzle such goods, he will be guilty of larceny. For in the first case, after the determination of the special contract by any plain and unequivocal wrongful act of the bailee, inconsistent with that contract, the property, as against the bailee, reverts to the owner, although the actual possession remain in the bailee. East P. C. 691. 627. The most remarkable case of this description is that of a carrier pointed out by the learned commentator. So the conversion of money with a felonious intent, which was found in a bureau delivered to a carpenter to be repaired, by breaking it open, when there was no necessity for so doing, for the purpose of repairs, will amount to a larceny, 8 Ves. 405. 2 Leach, 952. 2 Russ. 1045; and in the same case it was said, that if a pocketbook containing bank notes were left in the pocket of a coat sent to be mended, and the tailor took the pocket-book out of the pocket, and the notes out of the pocket-book with a felonious intent, it would amount to a felony, If the master and owner of a ship steal some of the goods delivered to him to carry, it is not larceny in him, unless he took the goods out of their package: nor if larceny, would it be an offence within 24 Geo. II. c. 45. R. & R. C. C. 92. And if corn be sent to a miller to grind, and he take part of it, he will be guilty of felony, 1 Roll. Abr. 73; but where forty bags of wheat were sent to prisoner, a warehouseman, for safe custody, until sold by prosecutor, and prisoner's servant, by direction of prisoner, emptied four of the bags and mixed their contents with other inferior wheat, and part of mixture was disposed of by prisoner, and remainder was placed in prosecutor's bags, which had thus been emptied, and there was no severing of any part of wheat in any one bag with intent to embezzle that part only which was so severed, the prisoner was held guilty of larceny in taking the wheat out of the bag. R. & R. C. C. 337. And where property which prosecutors had bought was weighed out in the presence of their clerk, and delivered to their carter's servant to cart, who let other persons take away the cart and dispose of the property for his benefit, jointly with that of the other persons, it was held, that the carter's servant was not guilty of a mere breach of trust, but that he as well as the other persons were guilty of larceny at common law. Russ. & Ry. C. C. 125; and see 2 East P. C. 568 to 574, 695 to 698. But in all these cases the defendant must have had an intention of stealing the property at the time it was delivered to him. R. & R. C. C. 441. over-ruling 2 East P. C. 690. 694. 2 Russ. 1089, 90. 1 R. & M. C. C. 87.
4thly. Where the offender has the qualified property and actual possession of the goods at the time of the embezzlement, he will not be
pack of goods, or pierces a vessel of wine, and takes away part thereof, or if he carries it to the place appointed, and afterwards takes away the whole,
guilty of larceny at common law. Thus where a servant or clerk had received property for the use of his master, and the master never had any other possession than such possession by his servant or clerk, it was doubted whether the latter was guilty of felony in stealing such property, or was guilty merely of a breach of trust, 2 Leach, 835. Hale, 668. East, P. C. 570, 1; and see 4 Taunt. 258. Russ. & Ry. C. C. 215. S. C. 2 Leach, C. C. 1054. So a cashier of the bank could not be guilty of felony in embezzling an India bond which he had received from the court of chancery, and was in his actual as well as constructive possession. 1 Leach, 28. So if a clerk received money of a customer, and, without at all putting it in the till, converted it to his own use, he was guilty only of a breach of trust, though had he once deposited it, and then taken it again, he would have been guilty of felony. 2 Leach, 835.
Servants and Clerks.-The dangers resulting from this doctrine occasioned the fenact ment of 39 Geo. III. c. 85. against such embezzlements by servants, or clerks, rendering the offence punishable with transportation for fourteen years. This act extends only to such servants as are employed to receive money, and to instances in which they receive money by virtue of their employment. It seems an apprentice, though under the age of eighteen, is within the act, R. & R. C. C. 80; so is a female servant. R. & R. C. C. 267. A person employed upon commission to travel for orders, and to collect debts, is a clerk within the act, though he is employed by many different houses on each journey, and pays his own expenses out of his commission on each journey, and does not live with any of his employers, nor act in any of their counting houses. R. & R. C. C. 198. servant in the employment of A. & B., who are partners, is the servant of each, and if he embezzle the private money of one, may be charged under the act as the servant of that individual partner. 3 Stark. C. N. P. 70. A man is sufficiently a servant within the act, although he is only occasionally employed when he has nothing else to do; and it is sufficient if he was employed to receive the money he embezzled, though receiving money may not be in his usual employment, and although it was the only instance in which he was so employed. R. &. Ry. C. C. 299. A clerk intrusted to receive money at home from out-door collectors, receives it abroad from out-door customers, it was held, that such receipt of money may be considered "by virtue of his employment," within the act, though it is beyond the limits to which he is authorized to receive money from his employers. R. & Ry. C. C. 319. So if a servant generally employed by his master to receive sums of one description and at one place only, is employed by him in a particular instance to receive a sum of a different description and at a different place, this latter sum is to be considered as received
by him by virtue of his employment, for he fills the character of servant, as it is by being employed as servant he receives the money. R. & Ry. C. C. 516. Where the owner of a colliery employed the prisoner as captain of one of his barges to carry out and sell coal, and paid him for his labour by allowing him two-thirds of the price for which he sold the coals, after deducting the price charged at the colliery, he was held a servant within the act, and having embezzled the price, he was guil ty of larceny within the act. R. & R. C. C. 139. So a servant who received money for his master for articles made of his master's materials which he embezzled, was held within the act, though he made the articles, and was to have a given portion of the price for making of them. Russ. & Ry. C. C. 145. The act is not confined to clerks and servants of persons in trade; it extends to the clerks and servants employed to receive of all persons whatever. Therefore where the overseers of a township employed the prisoner as their accountant and treasurer, and he received and paid all the money receivable or payable on their account, he received a sum and embez zled it, he was held a clerk and servant within the act. R. & R. C. C. 349. 2 Stark. C. N. P. 349. S. C. If a servant, immediately on receiving a sum for his masters, enters a smaller in his book, and ultimately account to his master for the smaller sum only, he may be considered as embezzling the difference at the time he made the entry, and it will make no difference, though he received other sums for his master on the same day, and in paying them and the smaller sum to his master together he might give his master every piece of money or note he received at the time he made the false entry. R. & R. C. C. 463. 3 Stark. N. P. C. 67. S. C. It seems the act does not apply to cases which were larceny at common law. 2 Leach, C. C. 1033. R. & R. C. C. 160. S. C. Peck's case, cor. Park, J. Staffordshire Sum. Ass. 1817, 3 Stark. Evid. 842. It is questionable, therefore, whether, if a servant receives money from his master to pay C. and does not pay it, he can be indicted for embezzlement, Russ. & Ry. C. C. 267; but as counts for larceny at common law, and for embezzlement under the statute, may be joined in the same indictment, any difficulty in this respect may be avoided. See 3 M. & S. 549, 550. Although property has been in the possession of the prisoner's masters, and they only intrust the custody of such property to a third person to try the honesty of their servant, if the servant receives it from such third person and embezzles it, it is an offence within the act. R. & R. C. C. 160. 2 Leach, 1033. S. C.
Party stealing his own Goods, &c.-Besides the cases already mentioned in the text, if a man steals his own goods from his own bailee, though he has no intent to charge the bailee, but his intent is to defraud the king, yet if the bailee had an interest in the possession and † See post. p. 231. note.
these are larcenies (c); for here the animus furandi is manifest; since in the first case he had otherwise no inducement to open the goods, and in the second the trust was determined, the delivery having taken its effect. But bare non-delivery shall not of course be intended to arise from a felonious design; since that may happen from a variety of other accidents. Neither by the common law was it larceny in any servant to run away with the goods committed to him to keep, but only a breach of civil trust. But by statute 33 Hen. VI. c. 1. the servants of persons deceased, accused of embezzling their masters' goods, may by writ out of chancery (issued by the advice of the chief justices and chief [*231] baron, or any two of them), and proclamation made thereupon, be summoned to appear personally in the court of king's bench, to answer their masters' executors in any civil suit for such goods; and shall, on default of appearance, be attainted of felony. And by statute 21 Hen. VIII. c. 7. if any servant embezzles his master's goods to the value of forty shillings, it is made felony; except in apprentices, and servants under eighteen years old (4), (5). But if he had not the possession, but only
(c) 3 Inst. 107.
could have withheld it from the owner, the taking is a larceny. R. & R. C. C. 470. 3 Burn. J. 24th ed. 240. S. C. And a man may be accessary after the fact to a larceny committed on himself, by receiving and harbouring the thief instead of bringing him to justice, Fost. 123; but a joint tenant in common of effects cannot be guilty of larceny in appropriating the whole to his own purpose, 1 Hale, 513; but if a part-owner of property steal it from the person in whose custody it is, and who is responsible for its safety, he is guilty of larceny. R. & R. C. C. 478. 3 Burn J. 24th ed. 241. S. C. Nor can a wife commit larceny of her husband's goods, because his custody is, in law, her's, and they are considered as one person. 1 Hale, 514. On the same ground no third person can be guilty of larceny by receiving the husband's goods from the wife, and if she keep the key of the place where the property is kept, her privity will be presumed, and the defendant must be acquit ted. 1 Leach, 47. See I Hale, 45. 516. Kel.
The taking must always be against the will of the owner, I Leach, 47; but if the owner, in order to detect a number of men in the act of stealing, directs a servant to appear to encou rage the design, and lead them on till the offence is complete, so long as he did not in duce the original intent, but only provided for its discovery after it was formed, the criminality of the thieves will not be destroyed. 2 Leach, 913. So if a man be suspected of an intent to steal, and another, to try him, leaves property in his way, which he takes, he is guilty of larceny. 2 Leach, 921. And if, on thieves breaking in to plunder a house, a servant, by desire of his master, shew them where the plate is kept which they remove,
this circumstance will not affect the crime. 2 Leach, 922.
(4) The above statutes, with others on the same subject, are repealed by the 7 and 8 Geo. IV. c. 27; and by the 7 and 8 Geo. IV. c. 29, 46, any clerk or servant stealing any chattel, money, or valuable security belonging to, or in the possession or power of his master, is punishable with transportation for any term not exceeding fourteen years, and not less than seven, or with imprisonment for any term not exceeding three years, with whippings. S. 47 enacts, that any clerk or servant, or person employed as such, receiving or taking, by virtue of such employment, into his pos session, any chattel, money, or valuable security, for, or in the name, or on the account of his master, and fraudulently embezzling the same, or any part thereof, shall be deemed to have feloniously stolen the same from his master, although such chattel, &c., was not received into the master's possession otherwise than by the actual possession of such clerk or servant, or other person so employed, and shall be liable to any of the punishments set forth in s. 45. By s. 48, "for preventing the difficulties that have been experienced in the prosecution of the last-mentioned offenders," it is enacted, "that it shall be lawful to charge in the indictment, and proceed against the offender for any number of distinct acts of embezzlement not exceeding three, which may have been committed by him against the same master, within the space of six calendar months from the first to the last of such acts; and in every such indictment, except where the offence shall relate to any chattel, it shall be sufficient to allege the embezzlement to be of money, without specifying any particular coin or valuable security; and such allegation, lue would be punished. (2 R. S. 678, § 59, &c.) The buying or receiving embezzled property knowingly, is punished in the same way. (Id. 61.) Carriers are also punished in the same way for embezzling, &c. (Id. § 62.)
the care and oversight of the goods, as the butler of the plate, the shepherd of the sheep, and the like, the embezzling of them is felony at common law (d). So if a guest robs his inn or tavern of a piece of plate, it is larceny: for he hath not the possession delivered to him, but merely the use (e), and so it is declared to be by statute 3 & 4 W. & M. c. 9. if a lodger runs away with the goods from his ready furnished lodgings (6). Under some circumstances also a man may be guilty of felony in taking his own goods: as if he steals them from a pawnbroker, or any one to whom he hath delivered and entrusted them, with intent to charge such bailee with the value; or if he robs his own messenger on the road, with an intent to charge the hundred with the loss according to the statute of Winchester (ƒ). 2. There must not only be a taking, but a carrying away (7); cepit et as(f) Fost. 123, 124.
(d) 1 Hal.P. C. 506.
(e) 1 Hawk. P. C. 90.
so far as regards the description of the property, shall be sustained, if the offender shall be proved to have embezzled any amount, although the particular species of coin or valuable security of which such amount was com. posed shall not be proved; or if he shall be proved to have embezzled any piece of coin or valuable security, or any portion of the value thereof, although such piece of coin or valuable security may have been delivered to him in order that some part of the value thereof should be returned to the party delivering the same, and such part shall have been returned accordingly." Each act of embezzlement should be set forth in a separate count, and the prosecutor cannot be compelled to elect which he will singly proceed upon. The indictment need not state from whom the money alleged to have been embezzled, was received. Rex v. Beacall, 1 C. and P. 454. The day laid is not material. By statute 5 Geo. IV. c. 20, 10, persons employed in the post-office embezzling notes, parliamentary, proceedings, or newspapers, &c., are guilty of a misdemeanor, and punishable by fine and imprisonment, the offence to be tried either where committed or where the offender is apprehended.
By 7 and 8 Geo. IV. c. 29, § 49, bankers, merchants, brokers, attornies, and other agents, embezzling money intrusted to them to be applied to any special purpose, or embezzling any goods, or valuable security intrusted to them for safe custody, or for any special purpose, are guilty of a misdemeanor, and punishable in any of the modes pointed out in s. 46. S. 50 provides, that the Act shall not affect trustees or mortgagees; nor bankers, &c. receiving money due on securities, or disposing of securities on which they have a lien. By s. 51, factors pledging for their own use any goods, or documents relating to goods, intrusted to them for the purpose of sale, are guilty of a misdemeanor, and punishable by transportation for fourteen or seven years, or by fine and imprisonment, as the court shall award; the clause not to extend to cases where the pledge does not exceed the amount of their lien. And by s. 52, these provisions as to agents shall not lessen any remedy which the party aggrieved previously had, at law or in equity. A person intrusted as a private
friend, with a bill to get it discounted, and converting it to his own use, is not an agent within the meaning of the Act. Rex v. Prince, 2 C. and P. 517.
(6) Repealed by 7 and 8 Geo. IV. c. 27; and by 7 and 8 Geo. IV. c. 29, § 45, it is enacted, that if any person shall steal any chattel or fixture let to be used by him in or with any house or lodging, he shall be guilty of felony, and be punished as for simple larceny; and the indictment may be preferred in the common form as for larceny, and as if the offender were not a tenant or lodger, and in either case the property may be laid in the owner or person letting to hire. In Healey's case, R. and M. 1, it was considered unnecessary to state by whom the lodging was let, the judges holding that the letting might be stated either according to the fact, or according to the legal operation. The statement as to the party by whom the lodging is let, would be regulated by this case under the present Act.
(7) If a thief cut a belt on which a purse is hung, and it drops to the ground where he leaves it, or if he compel a man to lay down goods which he is carrying, and is apprehended before he raises them from the ground, the crime is incomplete. 1 Leach, 322. n. b. I Hale, 533. And if goods are tied to a string, which is fastened at one end to a counter, and a person intending to steal them takes hold of the other, and removes them towards the door as far as the string will permit him, this will be no felony. So where the prosecutor had his keys tied to the strings of his purse in his pocket, which the prisoner endeavoured to take from him and was detected with the purse in his hand, but the strings still hung to the pocket by the keys, this was holden to be no asportation, and therefore no larceny was committed. I Leach, 321. n. a. 1 Hale, 508. But a very slight asportation will suffice. Thus, to snatch a diamond from a lady's ear, which is instantly dropped among the curls of her hair. 1 Leach, 320. 2 East, P. C. 557; to remove sheets from a bed and carry them into an adjoining room, 1 Leach, 222, in notes
to take plate from a trunk, and lay it on the floor with intent to carry it away, ibid.-and to remove a package from one part of a waggon to another, with a view to steal it, 1 Leach, 236. have respectively been holden to be felo