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he was at a hided back up
to a dealer in foreign coin, 3001. for doubloons, which he had contracted for three days before, and which were delivered to him on that day. And further, that he left his country-house at Hackney early on the same morning, in a stage coach, and brought with him a travelling portmanteau of linen and a drab great coat, which he had contrived to pack up without the knowledge of his family ; that he provided himself with some stockings, night-caps, and gloves, at a hosier's in Threadneedle-street, to whom he said that he was going out of town for a few days; and that, after having procured the foreign coin and American securities, he absconded by means of the Falmouth mail. When the route which he had taken was discovered, he was speedily pursued and apprehended at Falmouth, as he was about to get on board a packet for Lisbon, to which place he acknowledged that he intended to go in the first instance, and afterwards take an opportunity of getting to America. On being told the charge made against him, he delivered up the 11,0001. American bank shares, and the bag of doubloons.
The question left to the jury was, whether the prisoner, before he received the check, had formed the design of converting the money which should be received by means of it to his own use, or whether that design arose in his mind after he was in possession of it. They were directed to find the prisoner guilty, if they were of opinion that the former was the fact. The jury were of that opinion, and returned a verdict of guilty. Judgment was then respited, and the case reserved in order that the opinion of the Judges might be taken upon several objections made by the prisoner's counsel.
As to the counts which charged the stealing of a bill of exchange or warrant (i. e. the check) it was objected that the check was one entire thing, and could not be said to be stolen, as part of the produce, viz. 6,5001. was applied to the prosecutor's use, therefore there could not be a taking of the check with a felonious intent.
As to the same counts, it was also objected that under the 2 Geo. 2. c. 25, it was necessary that the instrument stolen should be of value in the hands of the party from whom it was stolen ; that the check was of no value to the prosecutor in his own hands; but that if it had been lost by the prosecutor, and got into the hands of a third person, and had been stolen from that third person, it would be within the act, as being then an instrument of value in that third person's hands, otherwise not.
It was also objected that the prosecutor had parted in this case with both the property and possession of the bill of exchange or warrant, and without fraud or misrepresentation; and this case was said to be the same as that of a voluntary deposit of money with a banker, who had previously determined to apply it to his own use.
That the identical notes paid to the prisoner were notes on which the prosecutor had no specific claim, and never were vested in him.
That bank-notes were not expected in return for the check, but another and a different thing, viz. Exchequer bills.
And that if the prosecutor had delivered the twenty-three notes
heck, so that the len from them: Lescription, wh
Tracet passes by ththe credit may boon, (9) was furbe stealing two
themselves to the prisoner, he undertaking to buy Exchequer bills with them, it would have been only a breach of contract, which he was to fulfil by returning Exchequer bills, and that he was to be considered as debtor to the prosecutor for the deficiency.
In Hilary Term, Ist of February, 1812, this case was argued in the Exchequer Chamber before all the Judges (except Lawrence, J.,) by Scarlett for the prisoner, and Gurney for the crown. And again on the 14th of February, 1812, before all the Judges (except Lawrence, J., and Chambre, J.,) when all the Judges present were of opinion that it was not a felony, and that the conviction was wrong upon several grounds. First, because there was no fraud or contrivance to induce Sir Thomas Plumer to give the check; secondly, because the check could not be called his goods and chattels, and was of no value in his hands; thirdly, because he had never had possession of the notes received at the bankers, so that they could not be called his notes ; and fourthly, because the bankers were discharged of the money by paying it on the check, so that they were not defrauded, and it could not be said the money was stolen from them. (p) The principle that cases of this description, where the property Atkinson's
case. in fact passes by the delivery of the owner, will fall within the 'The same rule, though the credit may have been obtained by fraudu- wrote a letter leutly using the name of another person, (9) was further acted upon in the name
of another, to in the following case. The prisoner was indicted for stealing two i third person, bank-notes, the property of William Dunn. The facts were, that requesting a the prisoner employed one Dale, to whom he was previously un- loan of mo
ney, and obknown, to carry a letter to the prosecutor, and told him to say to tained the mothe prosecutor that he had brought the letter from Mr. Broad. ney by such He also told Dale to bring the answer to him in the next street, means: held
; that the prowhere he would wait for him. Dale carried the letter to the prose- perty in the cutor, to whom it was directed. It was written in the name of a money passed Mr. Broad, who was a friend of the prosecutor's, solicited the by the deli
very of the loan of three pounds for a few days, and desired that the money owner, and might be enclosed back in the letter immediately. The prosecutor, therefore that upon the receipt of this letter, sent the bank-notes in question,
, did not enclosed in a letter directed to Broad, which he delivered to Dale, amount to who delivered it to the prisoner as he was first ordered. The let- felony. ter sent by the prisoner to the prosecutor was altogether an imposition. It was objected on behalf of the prisoner at the trial that this was no felony, because the absolute dominion of the property was parted with by the owner, though induced thereto by means of a false and fraudulent pretence. And the prisoner having been convicted, the case was submitted to the consideration of the Judges, who (with the exception of Buller, J., who was absent) held that it was no felony, as it appeared that the property was intended to pass by the delivery of the owner. (r)
() Walsh's case, Hil. T. 1812. Rus. & Ry. 215. 2 Leach 1054, 1082. 4 Taunt. 258, 284.
(9) Ante, 112.
(r) Rex v. James and William Atkinson, cor. Le Blanc, J., O. B. 1799,
and Mich. T. 1799. 2 East. P. C. c.
The cases which have been thus cited abundantly establish the proposition first laid down, that where the property in the goods
taken has been parted with by the owner, there can be no larceny. Delivery, But if the owner has not parted with the property in the goods, where the
he but only with the possession of them, the question of larceny still not part with remains open; and will depend upon the fact, whether, at the time the property, of the alleged felonious taking, the owner had parted with the but only with
possession of the goods in such a manner, and to such an extent, the possession, of the goods. as to exclude the idea of trespass. For if the owner of the goods
parted with the possession of them without fraud practised by the taker, and if, after the owner had so parted with the possession of them, nothing was done to determine the privity of contract under which the taker had the possession of them delivered to him, no trespass, and therefore no larceny, can be committed by their conversion.
Upon the subject therefore of larceny, where the owner or person authorized to dispose of the goods has parted with the possession of them by delivery to the party accused, the enquiry seems to resolve itself into two heads; first, Whether the delivery were obtained fraudulently with intent to steal the goods; and if the delivery were not so obtained, then, secondly, Whether the lawful possession has been determined, and whether there has been any
new and felonious taking. Delivery,
I. The cases in which it has appeared that the delivery of the where it has goods was obtained fraudulently, and with intent to steal them, been obtained frandulente consist principally of transactions usually described by the term with intent to swindling, and which have been in most instances carried on by steal the goods. the common arts adopted on such occasions. In a few, however,
the more aggravated proceeding has been adopted of getting frau
dulent possession of the goods by act of law. Sharpless and The prisoners Samuel Greatrix and John Sharpless were conGreatrix's victed of larceny, in stealing six pair of silk stockings, the pro
by perty of Owen Hudson : but, a doubt arising as to the propriety the desire of of the conviction, the judgment was respited, and the question rethe prisoner ferred to the consideration of the Judges on the following case. took a variety
y Greatrix, in the character of servant to Sharpless, left a note at ings to his the shop of Mr. Hudson, who was a hosier in Bridge-street, WestJodging minster, desiring that he would send an assortment of silk stockwhere the pri.
etend- ings to his master's lodgings at the Red-lamp in Queen-square. ed to purchase Mr. Hudson in consequence took a variety of silk stockings acsome of them, cording to the direction. Greatrix opened the door to him, and and set them apart from the introduced him into a parlour, where Sharpless was sitting in a rest, and then, dressing-gown, his hair just dressed, and an unusual quantity of having sent powder all over his face. Mr. Hudson unfolded his wares, and the hosier to fetch some Sharpless looked out six pair of silk stockings, the price of which more articles, Mr. Hudson told him was fourteen shillings a pair; and he then decamped
desired Mr. Hudson to fetch some silk pieces for breeches, and with the stockings: some black silk stockings with French clocks. Mr. Hudson hung this was bold- the six pair of stockings which Sharpless had looked out, on the en to be lar
back of a chair, and went home for the other goods ; but no posiceny.
tive agreement had taken place respecting the stockings. During Mr. Hudson's absence, Sharpless and Greatrix decamped with the
dulent pe aggravated opted on such in most instacribed by the them,
reconcerted the prisonergion, that the com
A. and the
six pair of stockings, which were proved to have been afterwards pawned by Sharpless.
The Judges were of opinion, that the conviction was right; for the whole of the prisoners' conduct manifested an original and preconcerted 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 leaving of the goods. The Judges thought also that, even independently of the preconcerted design and evil intention, there did not appear to be a sufficient delivery to change the possession of the property. (s)
The prisoner, John Wilkins, was indicted for stealing a great Wilkins's case. many pair of stockings, the property of William Wayte. The Where the
owner of following were the facts of the case. The prosecutor, Mr. Wayte, who was a hatter and hosier near the Haymarket, delivered two them by his parcels, containing the goods mentioned in the indictment, to his servant to be
delivered to apprentice, with directions to carry them to the house of Mr. A. Heath, a hosier, in Milk-street, Cheapside. · As the apprentice prisoner franwas going up Ludgate-hill, with the parcels under his arm, he dulently pro
cured the dewas met by the prisoner at the bar, who asked him where he was livery of them going? To which the apprentice answered,“ to Mr.Heath's.” The to himself, by prisoner, producing a small parcel, replied, “I know your master, pre
be A., it was “ and I owe him for those parcels. I was going for them to your holden to be “ shop; therefore do you give me your parcels, and take this back larceny. “ to your master. There is a letter inside, and it must be imme“ diately forwarded to Mr. Brown.” The apprentice accordingly consented to the proposed exchange, and delivered the two parcels to the prisoner, and the prisoner delivered his parcel to the apprentice. The prisoner, having effected this exchange, endeavoured to separate himself from the apprentice; but his manper created a slight degree of suspicion in the apprentice's mind, who, to satisfy his doubts, ran after the prisoner, and asked him if he was the Mr. Heath to whose house he was conveying the parcels? The prisoner replied, that he was Mr. Heath; and desired the apprentice to make haste home with the other parcel. The parcel which was delivered by the prisoner contained a collection of old rags of no value; and he was not the Mr. Heath he pretended to be. The jury were of opinion that the prisoner, by falsely pretending that he was going to the house of the prosecutor for Mr. Heath's parcels had contrived to make this exchange of parcels with an in
(8) Rex v. Sharpless and Greatrix, 0. B. 1772. I Leach 93. 2 East. P.C. c. 16. s. 105. p. 675. In the debate on Semple's case, (2 East. P. C. c. 16. S. 112. p. 692, 693,) a case was mentioned as having been determined very lately by the Judges, where a man ordered a pair of candlesticks from a silversmith to be sent to his lodgings, whither they were sent accordingly, with a bill of parcels by a servant; and the prisoner contriving to send the servant back, under some pretence, kept the goods; and it was ruled to be felony, although they were
delivered with the bill of parcels; such delivery being made under an expectation by the owner of being paid the money; for the jury found that it was a pretence to purchase with intent to steal. Mr. East, however, remarks upon this case, that it must be understood that the prisoner ran away with the goods, or did some other act to denote an intention of withdrawing himself from any account of them; and that no credit was intended to be given him, but that it was meant as a sale for ready money only. 2 East. P. C. ibid. pote (a).
obtain and and therethether, judgmente twelve
were statedWeight of tea, undicted for stealin
mpany-oers, had purchase, but had no
tent wrongfully to obtain and convert to his own use the goods mentioned in the indictment; and therefore they found him guilty. The court, however, being doubtful whether, under all the circumstances, the crime amounted to felony, the judgment was respited, and the case referred to the consideration of the twelve Judges, who were unanimously of opinion that the conviction was right. The learned Judge (Gould, J.,) who delivered their opinion, said, that it appeared to him that the prisoner's having obtained these goods fraudulently from the apprentice was just the same as if he had obtained them from the actual possession of the
master. (t) Hench's case. The prisoner, Robert Hench, was indicted for stealing a chest Fraudulently and fifty-nine pounds weight of tea, which, in one count of the obtaining a chest of tea indictment, were stated as the property of James Layton and W. from the India J. Thompson; and, in another count, as the property of the East House, though India Company. The facts were, that Messrs. Layton and Co., by means of a
uest note“ who were tea brokers, had purchased the chest of tea in question, and permit, No. 7100, at the East India House, but had not taken it away, holden to be
when the prisoner, who was in no way employed by them, went larceny.
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, and get a permit. The prisoner then went to the permit office, and 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 twelve Judges. But they were clearly
of opinion, that the offence amounted to felony.(u) Aickles's case. The prisoner, John Henry Aickles, was indicted for stealing a The prisoner bill of exchange of the value of a hundred pounds, the property agreed with the prosecutor
of Samuel Edwards.
The following facts appeared in evidence. to discount a Mr. Edwards, wishing to get his own note of hand discounted, bill of ex- had made application to several persons in the discounting line of change for him. Sand the business for that purpose. A few days afterwards the prisoner, a bill was deli- total stranger to Mr. Edwards, left an address at his lodgings vered into the while he was from home, “ Mr. H. No. 21, Great Pulteney-street, prisoner's
(1) Wilkins's case, 0. B. 1789,1 Leach 520. 2 East. P. C. c. 16. s. 104. p. 673.
(u) Hench's case, 0. B. Oct. 1810, Hil. T. 1811, MS.