Philip Bertie Petrides.

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blow inflicted ivas necessary for the preservation of the life
of another.

If the accused had reasonable ground for believing, and
honestly believed, that his act was necessary for the defence
of his mother, the homicide was justifiable.

The jury found the prisoner not guilty.



BURGLARY.



To constitute Burglary the House broken into must be a
Dwelling-house.

R. v. MARTIN. [1806]
(Eussel & Ryan, 108.)

The prisoner had broken open a house in the night and stolen
drapery and hosiery goods to the value of several hundred
pounds.

The house was to all intents and purposes a complete
dwelling-house, and had actually been fitted up as such by
the prosecutor, who had meant to get married and live there



312 CRIMINAL LAW.

with his wife. He did not, however, get married, but continued
to use the house and transacted his business in the shop and
parlour, and dined and entertained his friends and passed the
whole day there, considering it as his only home. There was a
room over the shop which contained bedding, but was not
fitted up as a bedroom, and the prosecutor never slept there,
but used to sleep at the house of his mother, who lived a door or
two away.

Held j the above facts did not constitute the offence of
burglary^ as the house was not a dwelling-house.



Breaking out of a House may constitute the Crime of Burglary.

E. v. M'KEAENEY. [1829]
(Jebb, 99.)

The prisoner was, about eleven o'clock at night, discovered in
the cellar of a house hidden under a heap of potatoes ; he
escaped into a room in the house and locked himself in. There
was a sky-light in the room, which the prisoner broke and
attempted to escape through. Davis, the owner of the house,
heard the glass breaking and rushed round to the other side of
the house in time to see the prisoner's head emerging through
the sky-light. He dealt the prisoner a blow on the head with
such force that he fell back into the room and was soon arrested
by a constable, who broke in the door. The jury having found
the prisoner guilty, the judge reserved for the twelve judges in
the Irish Court of Crown Cases Eeserved the question as to
whether the above facts constituted burglary.

Held, the prisoner having got his head out of the sky-
light it constituted a sufficient breaking out of the house to
complete the crime of burglary .



BURGLARY. 313



The penetration of even a Finger is a sufficient entry to
constitute Burglary.

R. v. DAVIS. [1823]
(Russel & Ryan, 499.)

The prisoner was tried on the charge of burglary in the
dwelling-house of Montague Levy son.

The prosecutor, who was standing in Pall Mall opposite his
shop one evening, saw the prisoner, who was a small boy,
standing by the window of the shop, which was part of the
dwelling-house of the prosecutor, and observed the prisoner push
his finger against a pane of glass in the corner of the window.
The effect of this was to break the glass, and the prosecutor,
standing in the position he did, saw the forepart of the prisoner's
finger on the shop side of the glass. The jury found the
prisoner guilty.

Held, there was a sufficient entry to constitute burglary.



FORGERY.



The imitation of the Signature of the Painter on a copy of a
Painting does not constitute Forgery, but may constitute a
Cheat at common law.

R. v. GLOSS. [1858]

(27 L. J. M. C. 54 ; Dears. & B. 460 ; 3 Jur. (N. S.) 1309 ;
6 W. R. 109; 7 Cox, C. C. 494.)

The prisoner, who was a picture dealer, was charged with the
offence of procuring and having in his possession for the pur-
poses of sale a certain painted copy of a picture on which



314 CRIMINAL LAW.

there " was unlawfully painted and forged the name of John
Linnoll."

He was also charged on another count with the offence of a
common law cheat.

The jury found him guilty on both counts.

Held, by the Court of Crown Cases Reserved, that if a
person knowingly sell as an original a copy of a picture
ivith the painter } s name imitated upon it, and by means of
the imitated name knowingly and fraudulently induce
another to buy and pay for the picture as a genuine work
of the artist, he may be indicted for a cheat at common law
by means of a false token ; but he cannot be indicted for
forging or uttering the forged name of the painter, for the
crime of forgery must be committed with reference to some
document or writing, and does not extend to the fraudulent
inula I ion of a name put on a picture merely as a mark to
identify it as the painter's work.



Intent to Defraud is necessary to constitute all common law
Forgeries and most statutory ones.

E, v. HODGSON. [1856]

(25 L. J. M. C. 78 ; Dears. & B. 3 ; 2 Jur. (N. S.) 453 ; 4 W. E. 509 ;
7 Cox, C. C. 122.)

The prisoner was indicted at common law in 1856 for forging
and uttering a diploma of the College of Surgeons. He had, it
was proved, procured one actually issued by the College of
Surgeons, erased the name of the person mentioned on it and
substituted his own, changed the date, and made other alterations
to make it appear to be a document issued by the College of
Surgeons to him.



FORGERY — LARCENY. 315

Held, this did not constitute forgery, as no attempt to
defraud had been proved. In order to constitute the offence
of forgery at common law, an intent to defraud or do
some specific wrong to an individual must be proved.

Note. — The Medical Act (21 Vict. c. 90, s. 40), passed soon after
this case, makes it a specific offence to falsely pretend to be a recog-
nised medical practitioner, punishable by a fine not exceeding 20A



LARCENY.



A person cannot be guilty of Stealing that which is already his

own.

E. v. SMITH. [1852]

(21 L. J. M. C. 1 1 1 ; 2 Den. C. C. 449 ; 16 Jur. 414 ; 5 Cox,
C. C. 533.)

The prisoner, professing to be about to pay the prosecutor
some money which was due to him, produced a slip of paper
impressed with a sixpenny receipt stamp, and put it down on
the table before the prosecutor, and mentioned the amount for
which the latter was to fill it up. After the prosecutor had
written and signed a receipt for that sum, the prisoner took it
up and went away with it without paying the money and in-
tending to defraud the prosecutor.

The jury found the prisoner guilty of larceny.

Held j by the Court of Crown Cases Reserved, that
the prisoner was not guilty of the offence of larceny, as
the receipt did not belong to the prosecutor, but tvas
merely handed to him for the purpose of writing his
name upon it in the presence of the prisoner, consequently it



31t> CRIMINAL LAW.

never was in the possession of the prosecutor independently
of the -prisoner. It never was intended that the receipt
should be the property of the prosecutor. If payment had
been made it would have been delivered to the prisoner as
his voucher.



Taking an Article in the bona fide belief that it belongs to
the taker is not Larceny.

E. v. HALL. [1828]
(3 Car. & P. 409.)

The prisoner was charged with robbing John Green, Lord
Ducie's gamekeeper, of three hare-wires and a pheasant. The
gamekeeper found three wires, in one of which a pheasant had
been caught. These wires had been set by the prisoner, who,
finding the gamekeeper had taken them, threatened to beat the
gamekeeper's brains out if he did not hand them over. Fearing
violence the gamekeeper did so.

It was contended by the prosecution that, the wires and
pheasant having been seized by the gamekeeper for the use of
the lord of the manor, under 5 Anne, c. 14, s. 4, the prisoner
had no property in them, and was therefore guilty.

Per Vaughan, B., to the jury in summing up : If the
prisoner acted on a bona tide impression that the wires
and pheasant were his property, and that he was only
getting back the possession of his own property, there was
no animus furandi, and therefore no larceny.

The jury found the prisoner not guilty.



LARCENY. 317



It is not Larceny to take an Article under a bona fide Claim of
Right, e.g., where the taker has a lien over the Article he
takes.

R. v. WADE. [1869]
(11 Cox, 549.)

The prisoner, who was a travelling umbrella mender, asked
the pros* cutor's wife if she had any umbrellas to mend. She
told him she had one in need of repair, and he thereupon offered
to do it cheaply for a few halfpence. Having repaired the
umbrella and handed it back to the woman, who replaced it
upstairs in her bedroom, he became more extravagant in his
demands, and insisted on being paid the sum of 9r/. for the
repairs. He contemptuously refused the '2d. she tendered him,
rushed upstairs and seized the umbrella, which he took
away.

The prisoner, in his defence, denied that he intended to steal
the umbrella, but merely took it to make sure that he was
paid.

Per Blackburn, J., to the jury in summing up: The
prisoner had a right to keep the umbrella until he had been
paid for the trouble he had been put to in repairing it. If
he had honestly claimed his right when he removed the
umbrella from the house, he was not guilty of larceny ; but
if on the other hand, it was a mere colourable pretence to
obtain possession, then it ivould be larceny. It did not
matter whether anything was due to him if, at the time
he took it, he honestly intended to hold it as a security
for his alleged lien.

The jury found the prisoner not guilty.



318 CRIMINAL LAW.

A Wife cannot as a rule be guilty of Stealing the Goods of her
Husband ; but where a Wife, guilty of Adultery, gives his
Goods to her Paramour, the latter is guilty of Larceny.

E. v. FEATHEESTONE. [1854]

(23 L. J. M. C. 127 ; Dears. C. C. 369 ; 2 C. L. E. 774 ; 18 Jur. 538 ;

2 W. E. 496 ; 6 Cox, 376.)

The prosecutor's wife left his house, taking with her some of
her husband's money, and saying to the prisoner, who was in a
room below, " It is all right ; come on." The prisoner left in a
few minutes, joined the prosecutor's wife, and slept with her at
a public-house the same night. The prisoner when taken into
custody was found to have the prosecutor's money upon him.
On the trial of the prisoner for stealing the prosecutor's money,
the jury found him guilty, stating that he received the money
from the wife knowing that she took it without the authority of
her husband.

Held, that the conviction was proper.

The general rule is that a wife cannot be convicted of
larceny for stealing the goods of her husband. It is no
larceny in the wife to carry away her husband'' s goods, as
husband and ivife are one person in the eye of the law. But
the law has properly qualified that general rule by saying
that, if a wife commit adultery and then steal the goods of
her husband with the adulterer, she has determined her
quality of wife, and is no longer looked upon as having any
property in the goods, and the person who assists her is
guilty of larceny, and his case is looked upon in the same
light as if he had taken the goods himself.

By sects. 12 and 16 of the M. W. P. A., 1882, the eloping wife
may herself also be convicted of larceny in the above circumstances.



LARCENY. 319



To constitute a Larceny by a Bailee some act of Conversion quite
inconsistent with the Bailment must be proved.

E. v. JACKSON. [1864]
(9 Cox, C. C. 505.)

The prisoner, who was a lodger of the prosecutor, borrowed a
coat from the prosecutor for a day. A few days later he again
borrowed the coat, but this time without the permission of the
prosecutor. The prosecutor, who met him with it on, however,
allowed him to continue wearing it that day. A day or two
later he left town, and was subsequently found on board a boat
bound for Australia wearing the coat.

Held, per Martin, B., who ivas trying the case, that
there was -no evidence of conversion to satisfy the statute ;
to bring a case within the statute the determination of the
bailment must be something analogous to larceny, and some
act must be done inconsistent with the purposes of the
bailment.



In order to constitute Larceny the Ownership in another of the
Article taken must be antecedent to the taking and not
created thereby. There is no property in Animals ferae
naturae unless reduced into Possession, and they cannot
therefore be Stolen.

E. v. TOWNLEY. [1871]
(40 L. J. M.C. 144; L.E. ICC. 315; 24 L. T. 517 ; 19 W. E. 725 ;

12 Cox, 59.)

Poachers killed some rabbits on Crown land, put some of
them in bags and some in bundles, strapped them together by
the legs, and concealed them in a ditch on the same laud as a
place of deposit till they could conveniently remove them. All



320 CRIMINAL LAW.

this took place before eight o'clock in the morning. The
prisoner, one of the poachers, then departed, and at about a
quarter to eleven o'clock on the same day returned with two
other men to the ditch and began to remove the rabbits. The
prisoner knew of the manner in which the rabbits had been
killed. It was taken as a fact that the poachers had no intention
to abandon the wrongful possession of the rabbits.

Held, that the above facts did not constitute larceny, as
the rabbits, when alive, were animals ferae naturae, not
the subject of property.

That although when killed, whether by licensees or tres-
passers, a wild animal becomes the property of the owner of
the soil, yet at the same time that fact does not entitle the
owner to maintain an indictment for larceny against the
person who kills it and picks it up ; in order to support an
indictment for larceny in cases of that kind there must be a
decided severance between the act of killing and the act of
taking aivay. In this case, however, the killing and placing
the rabbits in the ditch and subsequently removing them con-
stituted one inseverable act of talcing and carrying away,
and therefore there was no larceny.



The Finder of an Article is not guilty of Larceny where he
reasonably believes the true owner cannot be found, even
though after subsequently ascertaining who the true owner
is he converts it and appropriates its proceeds.

R. ». THUEBORN. [1849]

(18 L. J. M. C. 140 ; 1 Den. C. C. 387 ; T. & M. 67 ;

2 Car. & K. 831 ; 13 Jur. 499.)

The prisoner was indicted for stealing a bank note. It
appeared that he had picked it up on the road, and that he



LARCENY. :V2l

meant to appropriate it to his own use, but he had not then any
means of ascertaining the owner or any reason to believe that
the owner knew where to find it. He afterwards was informed
who the owner was, but notwithstanding this he changed it and
appropriated the money. The jury found that he had reason
to believe it to be the prosecutor's property before he changed it.

Held, that he was not guilty of larceny.

If a man finch goods that are actually lost, or are
reasonably supposed, by him to have been lost, and appro-
priates them with intent to take the entire dominion over
them, really believing, when he takes them, that the owner
cannot be found, it is not larceny. Nor is it larceny if,
after having so taken them, he obtains knowledge of the
ownership, and then appropriates them to his own use.
The wrong/id intention must exist at the time of the
taking, for though the possession ivas accompanied by a
dishonest intent, it was still a lawful possession, and good
against all but the real owner, and the subsequent conversion
was not therefore a trespass in this case and consequently
no larceny.

If, however, the finder who takes goods so lost, or
supposed to be lost, has reason to believe, at the time of
taking, that the oivner can be found, it is larceny.



J.



322 CRIMINAL LAW.



REC El VINO.



To constitute the offence of receiving Goods knowing them to
have been stolen, the Receiver must at the time he received
them have had a Guilty Knowledge.

R. v. WOODWARD. [1864]

(L. & C. 122.)

The thief of certain goods delivered them to the prisoner's
wife in the absence of her husband, and she paid him 6c?. on
account. Afterwards the prisoner met the thief, and with a guilty
knowledge agreed with him for the price, and paid the balance.

The prisoner was indicted with having received stolen goods
knowing them to have been stolen. It was contended on his
behalf that the guilty knowledge must exist at the time of
receiving, and that this was the time of the delivery to the wife ;
and that, when the wife received the stolen property, guilty
knowledge could not have come to the mind of the prisoner.
The jury found the prisoner guilty.

Held, the conviction was right, as although there tvas no
guilty knowledge in the prisoner at the time his tvife received
the goods, get, as soon as he met the thief, having acquired
a guilty knowledge, he approved of and ratified the receipt,
and this would <nia>unt to a receipt with a guilty know-
ledge.



EMBEZZLEMENT. 323

The Possessor of Goods recently stolen is presumed to be either
the Person who stole them or the Receiver, with guilty
knowledge, according to the circumstances of the case.

R. v. LANGMEAD. [1864]
(L. & C. 427 ; 10 L. T. 350 ; 9 Cox, C. C. 464.)

The prisoner was indicted on one count with having stolen
certain sheep, and on another with having received the same,
well knowing them to have been stolen.

The sheep which had been recently stolen were found to be
in the possession of the prisoner, who could give no reasonable
account as to how they came into his possession.

The prisoner was found by the jury to have been guilty on
both counts.

Held, the prisoner teas rightly convicted, for the possession
of property recently stolen is evidence that the person in
possession either stole the property or received it, knowing it
to be stolen, according to the other circumstances of the
case.



EMBEZZLEMENT.



To constitute the offence of Embezzlement, the offender must be a
Clerk or Servant of Person whose Money is embezzled.
Such employment may be of the slightest nature.

R. v. FOULKES. [1875]

(44 L. J. M. 0. 65 ; L. R, 2 C. C. 150 ; 32 L. T. 407 ; 23 W. R. 696 ;

13 Cox, C. C. 63.)

The son of a man who kept an office and held various appoint-
ments, amongst which was that of clerk to a local board, lived
at home and assisted his father in his office in conducting the
business of the board, but without being paid any salary, was

v2



32 1 CRIMINAL LAW.

found guilty by the jury of embezzling the money received by
his father on business of the local board while being employed
in the capacity of clerk or servant to his father.

Held, that the prisoner had been rightly convicted, as
although no binding contract existed ivhich could have been
enforced against the son, yet the employment may exist at
ivill, and need not necessarily be for a greater length of
time, and there was sufficient evidence that the prisoner tvas
the clerk or servant of his father, and had received money
on account of his master ivhich he had embezzled.



FALSE PRETENCES.

To constitute the offence of Obtaining Money by False Pretences
there must be a false pretence of some existing fact and not
merely of some future event.

E. v. LEE. [1863]
(L. & C. 309 ; 8 L. T. 437 ; 11 W. E. 761 ; 9 Cox, C. C. 304.)

The prisoner obtained money by pretending that he had got
to pay his rent on the following Monday, while in fact he had
no intention of paying it, but meant to appropriate the money
to his own purposes. The prisoner was indicted for obtaining
money by false pretences. The jury found the prisoner guilty
on the ground that the prisoner's statement that he was going
to pay his rent on the Monday was a false pretence and that the
money was advanced on the credit of that false pretence.

Held, that the finding of the jury did not warrant a con-
viction, for in order to sustain an indictment for obtaining
money by false pretences, there must be a false pretence of
some existing fact.



FALSE PRETENCES. 325

A False Representation may be by Silent Conduct.

E. r. BARNARD. [1837]
(7 Car. & P. 784.)

The prisoner, who was not a member of the University, went
to the shop of a Mr. Vincent in the High Street, Oxford, in a
commoner's cap and gown, and ordered certain tilings, which
were supplied to him. He stated that he belonged to Magdalen
College.

Held, even if nothing had passed in words, the fact of
the prisoner appearing in the cap and gown would be preg-
nant evidence from which a jury should infer that he
pretended he was a member of the University, and, if so,
would have been a sufficient false pretence to satisfy the
statute.

The jury found the prisoner guilty.



False Pretences may be by Implication.

E. v. COOPER, [1877]

(46 L. J. M. C. 219 ; 2 Q. B. D. 510 ; 36 L. T. 671 ; 25 W. E. 696 ;
13 Cox, C. C. 617.)

A prisoner was convicted upon an indictment which charged
him with obtaining eight tons of potatoes by falsely pretending
that he was a dealer in potatoes, and in a large way of business,
and in a position to do a good trade in potatoes, and was able
to pay for large quantities of potatoes as and when the same
might be delivered to him. The only evidence was the follow-
ing letter from the prisoner to the prosecutor: —

" Dear Sir — Please send me one truck of Regents and one
truck of Rock as samples, at your prices named in your letter.
Let them be good cpaality, then I am sure a good trade will be



326 CRIMINAL LAW.

done for both of us. I will remit you the cash on arrival of
goods and invoice. — Yours truly,

" William Cooper.

" P.S. — I may say if you use me well I shall be a good
customer. An answer will oblige, saying when they are put on."

The jury found the prisoner guilty of obtaining the potatoes
by false pretences.

Held \ false pretences may be made by the use of ambiguous
words, if tJtose words arc naturally and reasonably capable
of conveying them, and as the words used in the letter might
naturally and reasonably convey to the mind of the prose-
cutor the false pretences alleged in the indictment ; and a
jury, having found that such false pretences were so made
by the letter, the conviction was rigid.



By drawing a Cheque the Drawer impliedly represents that the
Cheque is a good and valid Order for the amount inserted in
it. A Drawer of a Cheque in payment for Goods where there
are no Funds to meet it may be liable for obtaining Goods
by False Pretences.

R. v. IIAZELTON. [1874]

(44 L. J. M. C. 11; L. E. 2 C. C. 134 ; 31 L. T. 431 ; 23 W. R. 139 ;
13 Cox, C. C. 1.)

The prisoner, having no funds at his bank, drew a cheque for
certain goods he bought on a ready- money transaction. He
had no authority to overdraw his banking account. On being
tried for obtaining goods by false pretences the jury found the
prisoner guilt}".

//'■A/, a nmn wlio makes and gives a cheque for the
amount of goods purchased in a ready-money transaction,



FALSE PEETENCES. 327

saying that he toishes to pay ready money, makes a repre-
sentation that the cheque is a good and valid order for the
amount inserted in it, and if such person has only a colour-
able account at the bank on which the cheque is drawn
without available assets to meet it, and has no authority to
overdraw, and knoivs that the cheque will be dishonoured on
presentation, and intends to defraud, he may be convicted of
obtaining such goods by false pretences.



The Offence of obtaining Money by False Pretences is not com-
mitted if the False Pretence does not induce a Person to
part with the Money.

E. v. MILLS. [1857]

(26 L. J. M. C. 79 ; Dears. & B. 205 ; 3 Jur. (N. S.) 447 ; 5 W. R.
528 ; 7 Cox, C. C. 263.)

The prisoner, who was employed to work for the prosecutor,
stated that he had done more work than was the fact, and
requested payment for the work he professed to have done.
The prosecutor, though lie was aware of the true amount of
work the prisoner had done, and that he was makiug a know-
ingly false overcharge, paid him what he asked.

Held, that the prisoner could not be indicted for obtaining
the money by false pretences as the false pretence did not
have the effect of inducing the prosecutor to part with the
money.



1328 CRIMINAL LAW.

The difference between the crime of False Pretences and that of
Larceny depends 0.1 whether the Owner intends to part
with the Property to the Person taking it. If he does
the offence is False Pretences ; if he does not it is Larceny.

E. v. BAENES. [1850]

(20 L. J. M. C. 34 ; 2 Den. 59 ; T. & M. 387; 11 Jur. 1123;

5 Cox, 112.)

It was the duty of the prisoner, who was a servant of the
prosecutors, in the absence of their chief clerk, to purchase and
pay for, on behalf of his masters, any kitchen stuff brought to
their premises for sale. On one occasion he falsely stated to the



Online LibraryPhilip Bertie PetridesStudent's cases : illustrative of all branches of the law → online text (page 24 of 29)