1 ARTICLE 379.

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 XXXIX.

2 ARTICLE 380.

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

Illustrations.

(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. This is not theft.

5

(2.) 3 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. In the first case A's act is theft, in the second, not.

6 ARTICLE 381.

TAKING TAME ANIMAL WANDERING NOT THEFT.

7 It seems that it is not theft to take and carry away an

1 S. D. Art. 305.

2 S. D. Art. 306.

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

41 Hale, P. C. 509.

5 R. v. Philipps, 2 East, P. C. 662; R. v. Addis, 1 Cox, C. C. 78, is to the same effect.]

6 S. D. Art. 307.

7 [1 Hawkins, P. C. p. 149, ch. 19, s. 40.]

[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.

1 ARTICLE 382.

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.

2

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 S. D. Art. 308.

"If a

2 [R. v. Burton, Dear. 282. In this case Maule, J., characteristically remarked. 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. 275-81), 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 behavior 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.]

CHAPTER XXXV.

1 EMBEZZLEMENT BY CLERKS AND SERVANTS.

2 ARTICLE 383.

EMBEZZLEMENT BY CLERKS AND SERVANTS-WHO ARE

3

SERVANTS.

[WHEN a clerk or servant, or person employed in the capacity of a clerk or servant, commits theft by converting any chattel, money, or valuable security delivered to or received, or taken into possession by him for or in the name or on account of his master or employer, his offence is called embezzlement.

Such a conversion is not a criminal offence (except in the cases hereinafter specially provided for) unless the person who converts stands to the owner of the property converted in the relation of a clerk or servant, or person employed in the capacity of a clerk or servant.

5 It is a question for a jury whether a person accused of embezzlement is a clerk or servant or not.

6 A clerk or servant is a person bound either by an ex

1 [3 Hist. Cr. Law, 151-6. Cf. Draft Code, ss. 249, 250, 258.]

2 S. D. Art. 309.

[Founded on 24 & 25 Vict. c. 96, s. 68. See Art. 429.] R. S. C. c. 164, s. 52; R. v. Paquet, 2 L. N. 140; R. v. Charest, 9 L. N. 114; R. v. Topple, 3 R. & C. 566. An assistant overseer appointed under 59 Geo. 3, c. 12, s. 7, but not for the purpose of collecting or receiving money, cannot be convicted of embezzlement as a clerk or servant of the inhabitants within 24 & 25 Vict. c. 96, s. 68; R. v. Coley, 16 Cox, C. C. 226. This decision is however questioned in a note at p. 230 of the report, as being difficult to reconcile with R. v. Hall, 1 Moo. C. C. 474. A school trustee whose duty does not require or authorize him to receive the money of the Board of Trustees cannot embezzle such moneys; Ferris v. Irwin, 10 U. C. C. P. 116.

[For an instance in which money was received in the name of one person and on the account of another, see R. v. Thorpe, D. & B. 562.

5 Bramwell, B., doubted as to this in Walker's Case, D. & B. 602; but see R. v. Negus,

L. R. 2 C. C. R. 34; R. v. Tite, L. & C. 33; R. v. May, L. & C. 13.

R. v. Negus, L. R. 2 C. C. R. 37 (judgment of Blackburn, J.); R. v. Tite, L. & C. 33.]

1

[press contract of service or by conduct implying such a contract to obey the orders and submit to the control of his master in the transaction of the business which it is his duty as such clerk or servant to transact.

2

A man may be a clerk or servant

although he was appointed or elected to the employment in respect of which he is a clerk or servant by some other person than the master whose orders he is bound to obey;

3 although he is paid for his services by a commission or share in the profits of a business;

4

5

although he is a member of any co-partnership, or is one of two or more beneficial owners of the property embezzled;

6

" although he is the clerk or servant of more masters than one;

7 although he acts as clerk or servant only occasionally, or only on the particular occasion on which his offence is committed.

But an agent or other person who undertakes to transact business for another, without undertaking to obey his orders, is not necessarily a servant

because he receives a salary; or

because he has undertaken not to accept employment of a similar kind from any one else; or

because he is under a duty (statutory or otherwise) to account for money or other property received by him.

It seems that in order that a clerk or servant may be within the meaning of this Article it is necessary that the objects of his service should not be criminal, but a man

1 [R. v. Foulkes, L. R. 2 C. C. R. 152.]

2 Illustration (1).

3 Illustrations (2) and (3).

4 31 & 32 Vict. c. 116, s. 1.] R. S. C. c. 164, s. 58.

5 ["Money (goods, or effects, bills, notes, securities) or other property."] The words in parentheses are not in the Canadian Act.

⚫ [Illustration (3).

7 Illustration (4).

8 Illustrations (6)-(9).]

[may be such a clerk or servant although the objects of his service are in part illegal as being contrary to public policy.

1

Illustrations.

(1.) 1 A, elected collector of rates by the vestry of a parish, and having to obey a committee of management, is the servant of the committee of management.

(2.) A was cashier and collector to B at a salary of £150 a year, besides 12 per cent on the profits of the business. A was not to be responsible for losses and had no control over the management of the business. A was a servant to B.

3

(3.) A took orders for B and collected money for him according to a journey book given to him by B, showing the sums to be received and the persons from whom they were due. A was paid by a commission. A was clerk to B, though he was principally employed by C, D, and others. (4.) A was employed by B to go on messages when A had nothing else to do, and B was to give A whatever B chose. A was B's servant.

(5.) 5 A, a drover, was employed by B, a farmer, on one single occasion to drive a cow and calf to a person to whom they were sold, and to bring back the money. A was B's servant.

(6.) 6 A, the master of a charity school, on one particular occasion consents to get a subscription to the funds of the school, at the request of B the treasurer of the committee of management by which A was appointed, and which managed the school. It was no part of A's duty as master to collect any subscriptions. In getting the subscription A was not the servant of B.

(7.) A, a drover, is employed by B, a grazier, to drive oxen to London, to sell them on the road, if possible, and to take those remaining unsold to a salesman in Smithfield. A is not B's servant.

(8.) B engaged A, who kept a refreshment house at Birkenhead, to get orders for manure manufactured by B. A was not bound to give any definite amount of time or labor to the purpose. The manure was sent

1 [R. v. Callahan, 8 C. & P. 154. See now 12 & 13 Vict. c. 103, s. 15, which applies also to assistant overseers; R. v. Cullum, L. R. 2 C. C. R. 29; and see R. v. Jenson, 1 Moo. C. C. 434.

2 McDonald's Case, L. & C. 85.

3 R. v. Carr, R. & R. 198. A doubt was expressed as to this last point referred to in this illustration in R. v. Goodbody, 8 C. & P. 665; but R. v. Batty, 2 Moo. C. C. 257, and R. v. Tite, L. & C. 29, uphold R. v. Carr and recognize the principle that a man may be servant to several persons at once.

4 R. v. Spencer, R. & R. 299.

6 R. v. Hughes, 1 Moo. C. C. 370.

6 R. v. Nettleton, 1 Moo. C. C. 259.

7 R. v. Goodbody, 8 C. & P. 665. The difference between this case and R. v. Hughes in Illustration (5) lies in the power of sale.

8 R. v. Walker, D. & B. 600.]