REG.

v.

MCKALE.

1868.

Larceny-
Evidence.

effect. [KELLY, C.B.-In all these cases the question is, whether the transaction was complete. I own it appears to me that here the transaction was not complete.]

Mellor in reply.-In Rex v. Jackson (Ry. & Moo. 119), where the prisoner obtained a diamond brooch and other articles and 1247. in money from a pawnbroker's shopman by pretending to deposit diamonds on pledge, the judges held, on a case reserved, that this was not larceny, because the shopman, who had a general authority from the master, parted with the property and ownership, and not merely with the possession. And it is said in note v., 2 Russ. on Crimes, 202, wherever the prosecutor parts with the property without expecting it to be returned, the indictment ought to be for false pretences. Rex v. Williams was clearly a case of larceny; the prosecutor never intended to part with the change without getting the half-crown. [KELLY, C.B.—Is not that this very case?] There is no parting with the change under a false impression that he had got the half-crown.

KELLY, C.B.-This case has been ably argued, and the question is whether any larceny has been committed. The distinction is well settled between obtaining a chattel by a fraud and stealing a chattel. It is necessary that the transaction should have been complete in order to constitute it a case of fraud; but if it is not complete-if the prosecutor has not parted with the property in the chattel, and the prisoner takes it away with a fraudulent intent-it amounts to a larceny. [His Lordship then repeated the facts.] In effect the transaction was this: The prisoner said, "Let me have my two-shilling piece again, and (it may be so taken) the two shillings you are to have in return for it are now before your eyes." The prosecutrix then took the money from the drawer and put it on the counter, expecting she was to receive two shillings of the prisoner's money in exchange for it. The question is, did she part with the money she placed on the counter? I say certainly not, for she expected to receive two shillings of the prisoner's money in lieu of it. She would have stopped the prisoner if she could while he was leaving the shop. Placing the money on the counter was only one step in the transaction. The act of the prisoner in taking up the money does not affect the question whether the prosecutrix parted with the property in it. The property is not parted with until the whole transaction is complete and the conditions have been fulfilled on which the property is to be parted with. The prosecutrix was in the act of putting the money given by the prisoner in the drawer when she detected the error in a moment, and what would have taken place but for the act of the prisoner and his confederate would have been this: she would have said you have only given me one shilling of your own money." It is clear that up to that time the transaction of the exchange was incomplete. Then the prisoner, knowing that it was her money and not his, takes off her attention by a trick, and quits the shop with her money. I am of opinion that the property in the two

66

shilling piece was not out of the prosecutrix for a moment; that it continued in her, and that the prisoner was guilty of larceny in taking it up and going out of the shop with it. It is the same as if the prisoner had come into the shop and asked for a sovereign in exchange for 18s. in silver and 2s. in copper, and a sovereign had been laid on the counter, and before the prosecutor had had time to count the prisoner's money the prisoner had hurried out of the shop, intentionally leaving something short. In Rex v. Jackson the transaction was complete. There was no complete parting with the property in this case, and the prisoner having carried it away fraudulently was guilty of larceny.

KEATING, J., PIGOTT, B., and M. SMITH, J., concurred.

LUSH, J.-For a long time I was under the impression that the prosecutrix had parted with the property in this case; but I now think that the case is susceptible of the view which my learned Brothers have taken of it; and I concur with them in the conclusion to which they have come.

Conviction affirmed.

REG.

v.

MCKALE.

1868.

Larceny

Evidence.

COURT OF CRIMINAL APPEAL.

May 2, 1868.

(Before KELLY, C.B., KEATING, J., PIGOTT, B., M. SMITH, J., and HANNEN, J.)

REG. v. ROGERS AND OTHERS. (a)

Larceny-Jurisdiction-Transmission of stolen property into another county-Railway-24 & 25 Vict. c. 96, s. 114.

The prisoner stole a watch in Liverpool, and sent it, with other things, by railway, to a confederate in Middlesex:

Held, that the prisoner was triable in Middlesex, although there was no evidence that he had left Liverpool.

CASES reserved at the Middlesex Sessions for the opinion of

this Court.

John Rogers, Richard Irwin, Alfred Johnson, and Charles Byatt were tried before me, at the sessions for Middlesex, on the 3rd of March, 1868, for stealing and receiving a watch, the property of John Shaw.

Byatt pleaded guilty.

Rogers was found guilty of stealing.

Irwin and Johnson were found guilty of receiving with a guilty knowledge.

John Rogers resided at Liverpool, and forwarded by railway a box containing the watch in question, and several other stolen watches, to the prisoner Byatt, and the box was delivered in due course to Byatt, in the county of Middlesex.

It was contended that as Rogers was not shown to have left Liverpool, the Court had no jurisdiction to try him.

I told the jury that if they believed Rogers to have stolen the watch, his transmission of it into the county by the agency of the railway was sufficient to give the Court jurisdiction, although he did not personally convey it.

It was proved that Rogers had advised Byatt of the transmission of the box by a letter found in Byatt's possession.

(a) Reported by JOHN THOMPSON, Esq., Barrister-at-Law.

The letter is as follows :

"Liverpool, Jan. 30, 1868.

"I send you up the goods this morning, they are as follows :—

"Try and deal this time without so much wrangling. You did not come down as you promised.

"DICK."

Articles corresponding with this letter were contained in the box found at Byatt's. The box was addressed to his house in the handwriting of Rogers, and a similar box, empty, with similar address in Rogers's handwriting, was found at Byatt's. That box was taken by Rogers to the railway office in Liverpool, on the 13th of January, and booked as a parcel for London. Rogers was asked if he wished to pay the carriage, and he did so. The box was then forwarded in the ordinary manner, the box containing the articles named in the letter (and amongst them the stolen watch in question) was sent by railway in the same manner on the 30th of January at ten o'clock in the morning, but the railway clerk could not say by whom it was brought to the office.

Irwin and Johnson were proved to have been at Byatt's house on the arrival of the box, and the jury found that they knew of the box and the contents having been forwarded by Rogers, and that they were present on its arrival, aiding and abetting Byatt in the receipt of the watch in question, they well knowing it to have been stolen, but it was not proved that either of them had manual possession of it, all the prisoners, Byatt, Irwin, and Johnson having been taken into custody before the box was opened.

It was proved that the watch in question was stolen from the owner at Liverpool on the 29th of January, about seven o'clock in the evening, and when found at Byatt's the bow of the watch had been broken off.

Rogers was the keeper of a beer-shop at Liverpool, and there were found in his house a number of watch-keys, a jeweller's eye-glass, and jewellers' scales and weights. Being asked by the officer what such things were used for, he laughed, and said " you know as well as I do.'

I have to ask this honourable Court whether, upon the facts here stated, the conviction of Rogers, Irwin, and Johnson, or either of them, can in point of law be sustained?

Rogers was sentenced to be kept in penal servitude for five

REG.

v.

ROGERS AND
OTHERS.

1868. Larceny Jurisdiction.

REG.

v.

ROGERS AND
OTHERS.

1868.

LarcenyJurisdiction.

years, and Byatt for ten years. Irwin and Johnson were sentenced to be severally imprisoned with hard labour for two years; and the prisoners remained in the House of Correction for the county of Middlesex, in pursuance of the above sentences. WM. H. BODKIN,

Middlesex Sessions, March 10, 1868.

No counsel was instructed for the prisoners.

Assistant Judge.

Collins, for the prosecution.-The jury having found Rogers guilty of stealing the watch, and he having it in his possession by his agents, the railway company, in the county of Middlesex, the Middlesex Court of Quarter Sessions had jurisdiction to try him for the felony (24 & 25 Vict. c. 96, s. 114.) The case is like that of Reg. v. Cryer (7 Cox Crim. Cas. 335), where the half of a country bank note having been stolen at some period during its transfer from S. in Wilts to Bristol, it was afterwards inclosed by the prisoner in a letter addressed to the bankers at S. demanding payment, which letter was posted at Bath. There was no other evidence of any receipt or possession by the prisoner in Wilts and it was held that the prisoner was rightly tried in Wilts, as the possession either of the post-office servants or the bankers was his possession. Reg. v. Jones (1 Den. Cr. C. 551) was referred to in that case, and it was there held that the postmaster became the agent for the prisoner, so as to render him liable to be tried in the county where the letter containing money was posted by the prosecutor to him, he being indicted for obtaining the money by false pretences. As against the other two prisoners, Irwin and Johnson, the verdict is conclusive.

KELLY, C.B.-In this case, as regards the prisoner Rogers, who was convicted of stealing a watch at the Middlesex Court of Quarter Sessions, it appears that the watch was stolen at Liverpool, and forwarded by railway to London to another prisoner, Byatt (who pleaded guilty), for the purpose of sale. The question arises, whether the possession of the watch, when it was in the county of Middlesex, in contemplation of law, must be taken to have remained in Rogers, who originally stole it at Liverpool? Upon that point Reg. v. Cryer is a conclusive authority; but, independently of that authority, I think that the constructive possession of Rogers by the railway company in Middlesex was, for criminal as well as civil purposes, equivalent to actual possession by him. The conviction must therefore be affirmed. As regards the other two prisoners, Irwin and Johnson, the verdict of the jury, that they were aiding and abetting Byatt in the receipt of the watch, makes them principals in the commission of the offence.

The rest of the Court concurred.

Conviction affirmed.