Punishment

for the felony,

for the misdemeanor,

for the offence

summary

conviction.

to exert is, after the verdict has been given, on the judge in determining the sentence.

The punishment for the felonious receiving is penal servitude to the extent of fourteen years (i). But receiving a post-letter, a post letter-bag, or any chattel, or money, or valuable security, the stealing, or taking, or embezzling, or secreting whereof amounts to a felony under the Post Office Acts, knowing the same to have been feloniously stolen, &c., and to have been sent or to have been intended to be sent by post, is punishable by penal servitude to the extent of life, or imprisonment not exceeding four years (k).

Where the principal offence is a misdemeanor by the Larceny Act, e.g., if the property has been obtained by false pretences, the receiver, knowing that the property has been unlawfully stolen, taken, obtained, converted or disposed of, is also guilty of a misdemeanor, punishable by penal servitude to the extent of seven years (7).

Where the principal offence is punishable on sumpunishable on mary conviction, the receiver is liable, on summary conviction, to the same punishment to which the principal is liable for stealing or taking such property on the same conviction (i.e., the first, second, or subsequent) (m).

Count for receiving in

indictment for stealing and vice versa.

Contrary to the general rule, which does not admit of different felonies being charged in different counts of the indictment (n), in an indictment for stealing any property it is lawful to add a count or counts for feloniously receiving the same or any part or parts thereof. And conversely, in an indictment for receiving it is lawful to add a count for feloniously stealing the same.

It is for the jury to say of which offence they find the prisoner guilty; or if there are more prisoners than one, it is for the jury to say which are guilty of each offence (o).

receivers.

Any number of receivers, though they received at dif- Trial of several ferent times, of the property which has been stolen or otherwise disposed of in such manner as to amount to a felony at common law or by the Larceny Act may be charged with substantive felonies (i.e., of receiving) in the same indictment, and tried together (p). And, in any case, upon the trial of two or more indicted for jointly receiving, the jury may convict one or more of separately receiving (1).

thieves, admit

With a view to the prevention of crimes of this and Penalties on those keeping similar descriptions, it has been provided that any one. public places who keeps a lodging, public, beer, or other house or who harbour place where intoxicating liquors are sold, or any place stolen goods, of public entertainment or public resort, or a brothel, &c. and knowingly lodges or harbours thieves or reputed thieves, or allows the deposit of goods therein, having reasonable cause for believing them to be stolen, is liable to a penalty not exceeding £10, or, in default of payment, imprisonment not exceeding four months; or instead, or in addition to such punishment, the court may require him to enter into recognizances for keeping the peace or being of good behaviour. There are also provisions for the forfeiture of licences on such conduct (r). Power is given under certain circumstances to search for stolen property, even without a search warrant (s).

If a pawnbroker is convicted of receiving stolen Pawnbroker

receiving.

(0) s. 92.

(p) s. 93.

(q) s. 94.

(r) 34 & 35 Vict. c. 112, ss. 10, 11.

(s) Ibid. s. 16.

Recent possession.

goods knowing them to be stolen (or of any fraud in his business), the court may direct that his licence shall cease to have effect (t).

We frequently hear of the so-called doctrine of Recent Possession, that is, of the possession of property within a short time after it has been stolen. Why a matter of mere common sense should be elevated to the style of a "doctrine," it is not easy to see. What is meant is only that, according to the circumstances of the case, the recent possession is evidence that the person in possession stole the property, or received it knowing it to have been stolen. This evidence may be of the strongest, or of hardly any weight at all. It will vary not only according to the length of time, but also according to other considerations, one of the chief of which is the nature of the property, whether it be of a description which can easily pass from one person to another. Thus the possession of a diamond ring a year after the theft would be more indicative of a felonious intent than the possession of a pound of cheese after the lapse of a week (u).

(t) 35 & 36 Vict. c. 93, s. 38.

(u) R. v. Partridge, 7 C. & P. 551; R. v. Langmead, L. & C. 427; R. v. Deer, 32 L. J. (M.C.) 33.

CHAPTER II.

EMBEZZLEMENT.

defined, and

EMBEZZLEMENT may be defined as the unlawful appro- Embezzlement priation to his own use by a servant or clerk of money distinguished or chattels received by him for and on account of his from larceny. master or employer. It differs from larceny by clerks or servants in this respect: embezzlement is committed in respect of property which is not at the time in the actual or legal possession of the owner, whilst in larceny it is. An example will illustrate the distinction. A clerk receives £20 from a person in payment for some goods sold by his master; he at once puts it into his pocket, appropriating it to his own use; this is embezzlement. The clerk appropriates to his own use £20 which he takes from the till; this is larceny. The line of demarcation between the two offences appears sometimes to be very finely drawn (x). This would be liable to work injustice, were it not for a provision to which we shall shortly have to refer (y).

The principal points to be noticed are the following:

(i.) Proof that the prisoner was employed as clerk

or servant.

(ii). Proof of his receipt for, or in the name of, or on account of, the employer or master.

(iii.) Proof of the unlawful appropriation.

(x) It is urged that there is no ground for preserving the distinction. This would especially be the case if the principle of possession of the servant being the possession of the master had been interpreted with the same latitude in criminal and civil cases.-Rosc. 463.

(y) v. p. 226.

Employment as clerk or servant.

Embezzlement by public officers.

(i.) Proof of the Employment as Clerk or Servant.

It is for the jury to determine whether the prisoner is a clerk or servant within the meaning of the statute, the court explaining what is necessary to constitute such a relation.

The clerks or servants need not be in the employment of those in trade. The particular name by which they are called, as accountant, collector, overseer, &c., is not material if the general relationship can be proved (z). It is a very difficult matter to determine whether the required relationship exists. The various tests which have been suggested all appear in turn to have been overruled. The employment need not be continuous, for it was held to be embezzlement though the prisoner was employed to receive in a single instance. only (a). The mode of remuneration for service is not decisive, that is, whether by commission or by salary. This will not distinguish an agent from a servant (b). Nor will a participation in the profits of the sale prevent the character of servant from arising (c). The question is not decided by the consideration whether the whole or only a part of a man's time is devoted to the other's business (d), nor whether he is bound to obey the latter's directions (e). A person who is employed as servant by several is considered the individual servant of each (ƒ).

Embezzlement by persons employed in the public service, or by police constables, of any chattel, money,

(z) v. R. v. Squire, R. & R. 349.

(a) R. v. Hughes, 1 Mood. C. C. 370.

(b) R. v. Bailey, 12 Cox, 56.

(c) R. v. Atkinson, 2 Mood. C. C. 278.
(d) R. v. Tite, 30 L. J. (M.C.) 142.

(e) v. R. v. Spencer, R. & R. 299.

(f) 3 Stark. N. P. 70. The reader is referred to the cases given by Archbold, Roscoe, &c., for a fuller examination of this difficult point, whether the relationship required by the statute exists; v. especially R. v. Negus, L. R. 2 C. C. R. 34; 42 L. J. (M.C.) 62.