induced a person to deliver

to

bank-notes him, by the fraud of ringdropping, and upon the usual that the notes should be re

agreement

turned, and the value of the jewel divided. Held

Watson's case. bank-notes of the value of 1007., the property of John Smith, in The prisoner his dwelling-house, against the statute 12 Ann. c. 7. The facts were these: Mary Smith, the prosecutor's wife, stated, that as she was going along the street the prisoner stooped down, picked up a small parcel, and said that he had got a prize: upon which she cried, "Halves," and said it was usual to give half of what was found. They went together into St. James's Park, where they examined the parcel in the presence of another man, (who appeared to be an accomplice of the prisoner's,) and found in it a locket with a large stone, and a paper purporting to be the receipt of a jeweller for 250l. for a diamond locket. The prisoner said his name was Smith, that he was the captain of a ship, and that to be larceny. he would go to a friend's house, where his cargo was, and bring 100%. towards paying the witness her share. He went accordingly, was absent about fifteen minutes, and when he returned, he said that his friend was not at home. After some further proposals respecting the disposal of the locket, it was at length agreed between them, that the locket should be left in the custody of the witness, and that she should deposit 1007. in the prisoner's hands as a security to return him the locket the next morning; at which time she was to receive from him half the value of the locket, as mentioned in the receipt found; and she was to have the 1007. deposited in the prisoner's hands, as such security as aforesaid, returned back. They then went to the witness's house, where she procured bank-notes to the amount of 100l. and laid them on the table, and the prisoner took up the bank-notes, said that they were right, and that he would call the next morning and settle the whole. He then delivered up the locket, went off with the notes, and never returned again. The locket was only of the value of five shillings and sixpence.

Persons acting in concert.

Upon this evidence the prisoner was convicted of the simple felony, in stealing the notes: but a case was reserved for the opinion of the Judges upon the objection that this was only a fraud, and not a felony. All the Judges held the conviction proper. (d)

If several act in concert to steal a man's goods, and he is induced by fraud to trust one of them in the presence of the others with the possession of the goods, and then another of the party entice the owner away, in order that the party who has obtained such possession may carry the goods away, all will be guilty of felony, the receipt by one under such circumstances being a felonious taking by all. Standley, Jones, and Webster, conspired to get some money from M'Laughlin, and they pretended that he could not produce 1007., upon which he produced it in notes which Jones took to count and afterwards handed to Standley, and Standley and Webster pretended to gamble for them, Jones then beckoned M'Laughlin out of the room, and Standley and Webster

(d) Watson's case, O. B. 1794. 2 Leach 640. 2 East. P. C. c. 16. s. 107. p. 680. The case was disposed of by the Judges in Hil, T. 1795, when upon the supposition that the verdict had been taken for the capital offence of stealing in the dwelling-house, (which

at first was thought to have been the case) the Judges all expressed their opinion, that as the notes were in the possession of the prosecutrix, and derived no protection from the house, the case did not fall within the statute, 12 Ann. c. 7. See ante, p. 51.

immediately decamped with the money, and all the three afterwards shared it. Upon a case reserved the Judges were unanimous that this was larceny in all the three. (e) In another case, County and Donovan planned to rob the prosecutrix of some coats, and County got her to go with him that he might get some money to buy them of her, and she left the coats with Donovan who immediately absconded with them; and upon a case reserved, the Judges held the receipt by Donovan to be a felonious taking of the coats by both.(ƒ)

hired a horse

and almost

afterwards
sold it.

jury thought
that it was
hired with the
intention of
stealing it,
and found the
prisoner guilty

The following is a case which, upon its being submitted to the Pear's case. consideration of the Judges, underwent a great deal of discussion. The prisoner The prisoner, John Pear, was indicted for stealing a black mare, on the prethe property of Samuel Finch. It appeared in evidence, that the tence of takprosecutor was the keeper of a livery stable in the Borough, and ing a journey, that the prisoner on the 2d of July 1779, hired the mare of him, immediately for the day, to go to Sutton in Surrey, and back again; and, upon being asked where he lived, said that he lodged at No. 25 in Kingstreet, and that he should return about eight o'clock in the evening. He did not return as he had promised; in consequence of which the prosecutor went next day to enquire for him according to the direction he had given, but could not find any such person. It turned out that the prisoner sold the mare on the afternoon of the same day on which he hired it, in Smithfield market. The learned Judge, by whom the prisoner was tried, left it to the jury dict was apto consider, whether the prisoner hired the mare with the intent proved of by of taking the journey which he mentioned, and afterwards a majority of the Judges changed that intention; and directed them that, if they were of after great opinion that he did so, they should acquit him, as in such case discussion. the mare must have been sold while the privity of contract subsisted but he directed them to find the prisoner guilty in case they were of opinion that the journey was a mere pretence of the prisoner's to get the mare into his possession, and that he hired her with an intention of stealing her. The jury found the prisoner guilty, and the point was reserved for the opinion of the Judges.

The Judges, after mature deliberation, differed very considerably as to the law of this case. One of them held that it was not felony at common law; because there was no actual taking of the mare by the prisoner. Three others, though they thought that the offence would clearly have been felony by the common law, entertained considerable doubts in consequence of the statutes 33 Hen. VIII. and 30 Geo. II. relating to the offence of obtaining goods by false tokens or false pretences, which statutes made such offences punishable as misdemeanors only. But seven of the Judges were clearly of opinion that the offence was felony.(g) They held that the obtaining possession of the mare, and afterwards disposing of her in the manner stated was in the construction of law such a taking as would have made the prisoner liable

(e) Rex v. Standley, East. T. 1806, MS. Bayley, J., Russ. & Ry. 305. (f) Rex v. County, East. T. 1816, MS. Bayley, J.

(g) It is stated also, that Black

stone, J., the twelfth Judge who was
absent on account of illness, always
held that it was felony. 2 East. P. C.
c. 16. s. 112. p. 686. in the note.

of larceny. And the ver

Charlewood's

case.

The prisoner obtained a horse under pretence of hiring it to take a journey, and shortly afterwards sold it. Held to be larceny, the jury finding an intent to

steal the horse at the time of hiring it.

to an action of trespass at the suit of the owner, if he had not intended to steal her; for she was delivered to the prisoner for a special purpose only, namely, to go to Sutton, which he never intended to do, but immediately sold her. That in this light the case would be similar to what was laid down by Littleton, sect. 71, who says, "if I lend to one my sheep to dung his land, or my "oxen to plough the land, and he killeth my cattle, I may have 66 trespass notwithstanding the lending." That if in such a case trespass would have lain, there could be no doubt but that in this case, where the felonious intent at the time of obtaining the possession, was found by the jury, it was felony by the common Îaw. (h)

The prisoner, George Charlewood, was indicted for stealing a bay gelding, the property of John Houseman. The prosecutor was a livery-stable keeper in Crown-street Soho; and on the 4th October 1785, the prisoner, who was a post-boy, applied to him for a horse, in the name of a Mr. Eley, saying, that there was a chaise going to Barnet, and that Mr. Eley wanted a horse to accompany the chaise, to carry a servant, and to return with the chaise. The gelding described in the indictment was accordingly delivered to him by the prosecutor's servant. The prisoner mounted the horse; and, on going out of the stable-yard, and meeting a friend of his, who asked him where he was going, he said that he was going no further than Barnet. He accordingly proceeded towards Tottenham-court-road, which leads to Barnet, and also, though in some degree circuitously, to Mr. Eley's house. This transaction took place about nine o'clock in the morning; and between three and four o'clock in the afternoon of the same day, the prisoner sold the gelding in Goodman's fields for a guinea and a half, including the bridle and saddle. The horse appeared to have been ridden very hard, and his knees were broken very badly. The purchaser almost immediately disposed of his bargain for fifteen shillings.

On putting this case to the jury, it was stated by the Court, that the Judges in Pear's case, under circumstances similar to the present, had determined, that if a jury be satisfied, by the facts proved, that a person, at the time he obtained another's property, meant to convert it to his own use, it is felony. That there was, however, a distinction to be observed in the present case, though so nice a one as possibly not to be obvious to common understandings. It was this; that if it appeared to them, that the prisoner at the time he hired the horse, for the purpose of going to Barnet, really intended to go there, but that, finding himself in possession of the horse, he afterwards formed the intention of converting 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. The jury found the prisoner guilty, on the ground that he intended to steal the horse at the time he hired it; and he was afterwards executed. (¿)

(h) Pear's case, O. B. 1779. 1 Leach 212. 2 East. P. C. c. 16. s. 112. p. 685. in which latter work the judgment (which is stated to have

been settled and approved by several of the Judges before it was delivered) is given at large.

(i) Charlewood's case, O. B. 1786.

vert it to his

own use. And

for

defiany nite time.

Major Semple was indicted for stealing a post-chaise, and the Semple's case. following facts were proved in support of the charge. The prose obtained a The prisoner cutor, Mr. Lycett, was a coachmaker, who let out carriages to hire. post-chaise, by The prisoner was a gentleman who lodged in the neighbourhood hiring, with an under the name of Major Harrold; and had sometimes hired intent to concarriages from the prosecutor, as he had occasion for them, and had own paid for them with punctuality. On the first of September, 1785, it was holden the prisoner hired a post-chaise of the prosecutor, saying, that he to be felony, although the should want it for three weeks or a month, as he was going a tour contract of round the North. It was agreed that the prisoner should pay at hiring was not the rate of five shillings a day during that time; and a price of fifty guineas was talked about, in case he should determine to purchase the chaise on his return to London: but no positive agreement took place between them 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 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. He then took fresh horses at the same inn at Uxbridge; but where he went with the chaise afterwards did not appear. But it appeared that he never returned it to Mr. Lycett; and that no tidings could be obtained of him till twelve months afterwards, when he was apprehended on some other charge.

It was submitted to the court, on behalf of the prisoner, that upon these facts the offence did not amount to felony; and that the case was distinguishable from those of Pear (k) and Aickles, (1) inasmuch as in those cases the parties had never obtained the legal possession of the goods delivered to them; whereas, in the present case, the prisoner had obtained the chaise upon a contract, which it was not proved that he had broken; as the chaise was not hired for any definite length of time, or to go to any certain place; and the mere understanding that it was for three weeks or a month, for the purpose of making a tour round the North, made no part of the contract. And, even supposing that the contract should be thought not to extend beyond the three weeks or a month, yet, as it was clear that, during that time at least, the prisoner had the legal possession of the chaise, no intention to convert it wrongfully to his own use, arising afterwards, whether from necessity or dishonesty, would make the withholding it felony; as the animus furandi must exist at the time the property is obtained. But the court said, that they were bound by the determination of former cases, that it was at that time settled that the question of intention was for the consideration of the jury; and that, in this case, if the jury should be of opinion that the original taking of the chaise was with a felonious intent to steal it, and the hiring a mere pretence to enable the prisoner to

1 Leach 409. 2 East. P. C. c. 16. s. 112. p. 689. Another point was subImitted to the consideration of the jury as to a felonious taking after the prisoner's return to London, and

VOL. II.

K

the end and purpose of hiring the
horse being determined; but as to
this, see Rex v. Banks, post, 132,

(k) Ante, 124.
(1) Ante, 124,

Delivery of goods obtained by the fraudulent

process.

effectuate that design, without any intention to restore or pay for it, it would fall precisely within the principle of Pear's case, and the other decisions which had been made: and the taking would amount to felony. For if the owner only intended to give the prisoner a qualified use of the chaise, and the prisoner had no intention to make use of that qualified possession, but to convert it to his own use, he did not take it upon the contract, and therefore did not obtain the lawful possession of it: but if there were a bona fide hiring, and a real intention of returning it at that time, the subsequent conversion of it could not be felony; for by such contract and delivery the prisoner would have acquired the lawful possession of the chaise; in which case his subsequent abuse of that trust would not be felony. That as to there being no proof of actual conversion in this case, it was not necessary; but the jury must judge of it from the circumstances. If the prisoner had staid out six weeks, or two months, and on his return had offered to restore the chaise to the owner, or to pay him for it, such a conduct would have been evidence of an honest intention at the time of the hiring. But there was no account given of it, even up to that moment and therefore a presumption was raised against the prisoner, which it was incumbent on him to repel; and if he could not, the jury would have to consider, from all the facts in proof, whether the taking were with a felonious intent or not. If it were, the case fell directly within the principle which governed that of Pear's from which it could not be distinguished. The court, therefore, left the question of intention to the jury, who found the prisoner guilty; and he received sentence of transportation for seven years. (m)

A delivery of goods obtained by a fraudulent abuse of legal process has been already mentioned as amongst the most aggravated of these cases of larceny where the taking is effected by procuring abuse of legal a delivery of the goods from the owner, or other person authorized to dispose of them. (2) It will generally be a matter of some difficulty to give satisfactory proof of a felonious intent in such a transaction; but if the offence be proved, the severest punishment which it can receive may well be inflicted; for it has been justly observed that such an offence converts the process of the law, which is the best security for property, into an instrument of rapine and plunder. (0)

The books do not furnish many instances of larcenies of this description. But it is laid down that if a person, intending to steal a horse, take out a replevin, and having thereby procured the horse to be delivered to him by the sheriff, ride him away; or if a man, intending to steal the goods of another, fraudulently deliver an ejectment, and by obtaining judgment against the casual ejector, get possession of his house, and take his goods; in both these cases the taking will amount to

(m) Semple's case, cor. Gould, J., and Adair, Serjt., Recorder, O. B. 1786, 1 Leach 420. 2 East. P. C. c. 16. s. 112. p. 691.

(n) Ante, 118.

(0) 1 Hawk. P. C. c. 33. s. 12. 2 East. P. C. c. 16. s. 96. p. 660.