might be found. that changes the theft.

1

Next day he hears who the owner is, and after note and keeps the money. This is not

(6.) 1 A finds a bank-note in the road with the owner's name upon it, and takes it, intending at the time to return it to the owner, but afterwards changes his mind and keeps it for himself. This is not theft.

(7.) 2 A finds an apple, which appears to have been thrown away in a road, and eats it. If A reasonably believes that the apple had been abandoned by its owner, this is not theft.

ARTICLE 329.

CONVERSION AFTER A TAKING AMOUNTING TO TRESPASS.

If a person takes into his custody any chattel belonging to any other person in a way which constitutes an actionable wrong to that person and afterwards converts it, he commits

theft, although he may not have intended to convert it when he took it into his custody.

Illustrations.

(1.) 3 A, having a flock of lambs in a field, drives them out, and negligently drives away with them a lamb belonging to B which happens to be there. At the time of driving away the lamb A does not intend to convert it, but afterwards, on discovering what has happened, he sells the lamb and keeps the money. This is theft.

1 Preston's Case, 1851, 2 Den. 353. The illustration does not represent the actual facts in Preston's Case, but a state of facts which the Court said might have existed and upon which the jury might have convicted him under the terms in which the very able judge who tried the case (the late M. D. Hill, Recorder of Birmingham) directed them.

2 Per Rolfe, B., in R. v. Peters, 1843, 1 C. & K. 245; and see the summing up of Cockburn, C.J., in R. v. Glyde, 1868, 1 C. C. R. 140-1. In some of the cases on this subject a distinction is taken between property absolutely lost and property only mislaid; see R. v. West, 1854, D. & P. 402. It would appear, however, that the only real difference is that in the latter case the finder must know that the owner may be found. The distinction was useful as a step towards modifying the generality of the rule laid down by the old text writers: see e.g. 1 Hawkins, P. C. 142. "One who finds such goods as I have lost, and converts them to his own use, animo furandi, is no felon."

3 R. v. Riley, 1853, D. & P. 149.

1

(2.) 1 A takes home B's umbrella from a club by mistake, and having afterwards found out that it is B's, converts it. A commits theft.

ARTICLE 330.

CONVERSION AFTER INNOCENT TAKING.

If a person innocently in any way not referred to in any of the preceding Articles has the possession of any chattel, and converts such chattel, he does not commit theft, although such chattel may have been intrusted to him by the owner, or may be the proceeds of something which was intrusted to him by the owner for the owner's benefit, or for the benefit of some person other than the person so intrusted, unless such conversion falls within the provisions of Chapter XLII. or Article 335.

2

Illustrations.

(1.) A assigns his goods by deed to trustees for the benefit of his creditors. The trustees do not take possession, but leave A's possession undisturbed. A makes away with the goods, intending to deprive his creditors of them. This is not theft.

(2.) 3 B's house being on fire, A takes B's goods to A's house for protection, B acquiescing as to some of them. A's intention at the time is to keep them for B, but A afterwards changes his mind and converts them. This is not theft.

(3.) B gives his broker A a cheque to buy Exchequer bills. A buys Exchequer bills for B with part of the proceeds of the cheque and absconds with the rest. This is not theft.

(4.) 5 B, a boy unable to read, finds a cheque and gives it to A, asking A to tell him what it is. A, on various false pretences,

1 Per Pollock, C.B., and Parke, B., in Riley's Case, p. 156; see the question of Martin, B., in Preston's Case, 1851, 2 Den. 359.

2 R. v. Pratt, 1854, Dear. 360.

3 Leigh's Case, 1800, 2 East. P. C. 694-5. This case seems to show that if A were to find a bank-note for £1000, which he knew to be B's, and were to take it up intending to give it to B, and were afterwards to be tempted to go to a gaming house, and were there to stake and lose it, he would not commit theft, and I believe that such is the law.

4 Walsh's Case, 1812, 2 Lea. 1054. Walsh's Case was the occasion of the first of a series of statutes now represented by 24 & 25 Vict. c. 96, ss. 75-79. See post, Chapter XLII.

5 R. v. Gardner, 1862, L. & C. 243.

withholds it from B in hopes of getting a reward from the owner. A has not stolen the cheque.

1

(5.) A, the acting treasurer of a local Church Missionary Society, whose duty it is to deposit or invest the moneys received by him on account of the society, converts them. This is not theft.

(6.) 2 A is the treasurer of a money club, the nature of which is that certain persons deposit a weekly sum and are liable to fines in default. Loans may be made on interest to the members at A's discretion. The total amount, including interest on the loans, but subject to small deductions, to be divided amongst the members at the end of the year. A converts the balance in his hands at the end of the year. This is not theft.

ARTICLE 331.

OBTAINING BY FALSE PRETENCES NOT THEFT.

It is not theft to persuade any person by fraud to transfer the property of any chattel to any person, though such an act may be an offence under Chapter XLI.

ARTICLE 332.

TEMPORARY TAKING IS NOT THEFT.

3 It is not theft to deal with anything in any of the ways in which theft can be committed with the intention only to obtain the temporary use thereof, and not with the intention to convert it permanently to the use of some person other than the owner; but if a thing is so dealt with with the intention of totally depriving the owner of his property in it, the returning of the goods after a tempor

1 R. v. Garrett, 1860, 8 Cox, C. C. 368, and 2 Russ. Cr. 136–7. This would not even now be an offence. As the offender had not to pay over or return the specific coins intrusted to him, he was not a bailee; and as there was no express trust of the money created by an instrument in writing he was not within the fraudulent trustee clauses of the Larceny Act.

2 Nor is it any offence at all. R. v. Hassell, 1861, 1 L. & C. 58.

3 See Illustrations, and for the latter part of the Article note to R. v. Phetheon, 1840, 9 C. & P. 554, and R. v. Trebilcock, 1858, D. & B. 453.

ary use of them will not prevent the act from amounting to larceny.

Illustrations.

1

(1.) A takes B's horse without B's leave, rides about on it to find some cattle, and then turns it loose on the common. is not theft.

2

This

(2.) A rides B's horse, without B's leave, to a place thirty miles off, and leaves him at an inn, saying he will call for him. A does not call for the horse, but pursues his journey on foot. The jury must consider whether A meant permanently to deprive B of his horse, or only to make that particular journey on him.

not.

In the first case A's act is theft, in the second,

ARTICLE 333.

TAKING TAME ANIMAL WANDERING NOT THEFT.

3 It seems that it is not theft to take and carry away an animal which, though really tame, is wandering at a distance from its habitation as if it were wild, and when it is not known to be tame by the person who takes and carries it away.

ARTICLE 334.

EVIDENCE AS TO THEFT.

The inference that property alleged to have been stolen has in fact been stolen may be drawn from other facts than the fact that it is identified by a witness.

The inference that an accused person has stolen property, or has received it knowing it to be stolen, may be drawn from the fact that it is found in his possession after being stolen, and that he gives no satisfactory account of the way in which it came into his possession.

11 Hale, P. C. 509.

2 R. v. Phillips, 1801, 2 East, P. C. 662; R. v. Addis, 1844, 1 Cox, C. C. 78, is to the same effect.

31 Hawkins, P. C. p. 149, ch. 19, s. 40.

Illustration.

1 A is seen coming out of a lower room in a warehouse in the London Docks, in the floor above which a quantity of pepper is deposited, some being loose on the floor. A's pockets are full of pepper. On being stopped he throws down the pepper, and says, "I hope you will not be hard upon me." A may be convicted of stealing the pepper, although no pepper was missed from the warehouse, and the pepper on A was not otherwise identified than by being shown to be similar to that in the warehouse.

1 R. v. Burton, 1853, D. & P. 282. In this case Maule, J., characteristically remarked, "If a man go into the London Docks sober, without means of getting drunk, and comes out of one of the cellars very drunk, wherein are a million gallons of wine, I think that would be reasonable evidence that he had stolen some of the wine in that cellar, though you could not prove that any wine was stolen, or any wine was missed.'

As to the rule as to recent possession of stolen goods, many cases have been decided on the subject (see 2 Russ. Cr. 275-283), but they seem to me to come to nothing but this, that every case depends on its own circumstances, and that the nature of the thing stolen, the length of the interval between the theft and the possession, and the behaviour of the accused may all vary the force of the evidence indefinitely. The unexplained possession of a single stolen coin by a shopkeeper doing a large business in whose till it was found ten minutes after the theft, would prove nothing. The finding of a lost will ten years after its loss, locked up in the strong box of a careful person deeply interested in its temporary concealment, and peculiarly jealous of his strong box, would prove a great deal. Between these extremes there may be infinite degrees in the weight of such evidence.