Defender of the Faith, and in the year of our Lord 1865, before George Darby, Esq., Alexander Beattie, Esq., and others their fellows Justices of our said Lady the Queen, assigned to keep the peace in the said county, and also to hear and determine divers felonies, trespasses, and other ill deeds done and committed in the county aforesaid, Caleb Sherlock was tried on an indictment preferred and found against him on the 2nd July aforesaid, of which the following is a copy: "SUSSEX, The Jurors for our Lady the Queen, upon their oath to wit. Spresent, that heretofore, and before the committing of the offence hereinafter mentioned, to wit, on the 25th May, in the year of our Lord 1865, Isaac Brown and James Brown were in the custody of James Newnham and George Parsons, constables of the East Sussex county constabulary, and James Baldwin, a peace officer in the parish of Rotherfield, in the said county of Sussex, upon a charge of felony; and the said Isaac Brown and James Brown committed an assault upon the said constables and breach of the peace, with intent to resist their lawful apprehension. And the jurors further present that the said constables, there being a reasonable necessity for them to do so, called upon Caleb Sherlock, the defendant, for assistance, in order to prevent the said assault and a breach of the peace. And the jurors aforesaid further present, that the defendant Caleb Sherlock did unlawfully, wilfully, and knowingly refuse to aid and assist the said constables in the execution of their duty, or to prevent an assault and breach of the peace, against the peace of our said Lady the Queen, her Crown and dignity." The defendant's counsel submitted that the indictment was bad upon the following points: First. The record did not show a lawful apprehension of the two Browns. Secondly. That there could not have been an assault to prevent apprehension, the Browns being already apprehended. Thirdly. That the record does not state that the refusal to assist was on the same day and year as the assault, nor that it was the same assault; and that the merely stating a refusal is not sufficient without an allegation that the defendant did not aid and assist. The Chairman did not withdraw the case from the jury, and the defendant was convicted and ordered to pay a fine to Her Majesty of 5l., which amount the defendant deposited with the Deputy Clerk of the peace pending the decision of the Court for Crown Cases Reserved. The opinion of the Court for Crown Cases Reserved is requested whether the defendant was lawfully convicted upon the above indictment? No counsel appeared on either side. G. DARBY, Chairman. Conviction affirmed. 1 COURT OF CRIMINAL APPEAL. January 20, 1866. (Before ERLE, C.J., MARTIN, B., KEATING, MELLOR, and LUSH, JJ.) REG. v. SCHMIDT (a). Receiving stolen goods-Stoppage in transitu from the thief to the receiver -Delivery by owner. Passenger's luggage, in charge of a railway company, was stolen from the railway-station. Afterwards the thieves sent a portion of it in a bundle and delivered it to the same railway company to be forwarded by them to B., at Brighton. When it arrived at Brighton, the police officer attached to the railway company examined the bundle, and finding it to contain part of the stolen property, directed a porter not to part with it until further orders. The thieves were then arrested and on the following day the bundle was sent by the railway company to B., who, having received it, was charged with feloniously receiving it : Held (per Martin, B., Keating and Lush, JJ.), that the charge could not be sustained, the property having been obtained by the owners from whom it had been stolen before the receiving by the prisoner (Erle, C.J., and Mellor, J., dissentientibus). CASE reserved for the opinion of this Court by the Deputy Chairman of the Quarter Sessions for the Western Division of the county of Sussex. John Daniels, John Scott, John Townsend, and Henry White, were indicted for having stolen a carpet-bag and divers other articles the property of the London, Brighton, and South Coast Railway Company; and the prisoner Fanny Schmidt for having feloniously received a portion of the same articles, well knowing the same to have been stolen. The evidence adduced before me as Deputy-Chairman of the Court of Quarter Sessions at Chichester, for the Western Division of the county of Sussex, on the 20th October, 1865, so far as relates to the question I have to submit to the Court of Criminal Appeal, was as follows: On the 29th July, 1865, two passengers by the prosecutors' line of railway left a quantity of luggage at the Arundel station, which luggage was shortly afterwards stolen therefrom. (a) Reported by JOHN THOMPSON, Esq., Barrister-at-Law. On the 30th July a bundle containing a portion of the stolen property was taken to the Angmering station, on the same line of railway, by the prisoner Townsend, and forwarded by him to the female prisoner, addressed "Mr. F. Schmidt, Waterloo-street, Hove, Brighton." The bundle was transmitted to Brighton, in the usual course, on Sunday morning the 30th. Meanwhile the theft had been discovered, and shortly after the bundle had reached the Brighton station a policeman (Carpenter), attached to the railway company, opened it, and having satisfied himself that it contained a portion of the property stolen from the Arundel station, tied it up again and directed a porter (Dunstall), in whose charge it was, not to part with it without further orders. About 8 p.m. of the same day (Sunday 30th) the prisoner, John Scott, went to the station at Brighton and asked the porter (Dunstall) if he had got a parcel from the Angmering station in the name of Schmidt, Waterloo-street. Dunstall replied "No." Scott then said, "It is wrapped up in a silk handkerchief and is directed wrong, it ought to have been directed to 22, Cross-street, Waterloo-street." Dunstall in his evidence added, "I knew the parcel was at the station, but I did not say so because I had received particular orders about it." The four male prisoners were apprehended the same evening in Brighton on the charge, for which they were tried before me and convicted. On Monday morning the 31st July, the porter (Dunstall), by the direction of the policeman (Carpenter), took the bundle to the house No. 22, Cross-street, Waterloo-street, occupied as a lodginghouse and beerhouse by the female prisoner and her husband (who was not at home or did not appear) and asked if her name was Schmidt, on ascertaining which he left the bundle with her and went away. Carpenter and another policeman then went to the house, found the bundle unopened, and took the prisoner to the Town-hall. All the prisoners were found guilty, and I sentenced each of them to six months' imprisonment with hard labour. They are now in Petworth-gaol in pursuance of that sentence. At the request of the counsel for the female prisoner I consented to reserve for the opinion of this Court the question, Whether the goods alleged to have been received by her had not, under the circumstances stated, lost their character of stolen property, so that she ought not to have been convicted of receiving them with a guilty knowledge within the statute? HASLER HOLLIST. Pearce (Willoughby with him) for the prisoner. -The conviction is wrong. To support a conviction for receiving stolen goods, it must appear that the receipt was without the owner's authority. In this case, in consequence of the conduct of the railway company, the property had lost its character of stolen property at the time it was delivered at the receiver's house by the railway porter. REG. υ. SCHMIDT. 1866. Felonious receiving. REG. v. SCHMIDT. 1866. Felonious The property is laid in the indictment as the property of the railway company, and Carpenter was not an ordinary policeman, but, as the case states, a policeman attached to the railway company. He opens the bundle, and finding therein some of the stolen property, he gives it to Dunstall, and orders it to be receiving detained until further orders, and in the meantime the thieves were arrested; Carpenter then directs Dunstall to take the bundle to the receiver's house, so that the receiver got the stolen property from the railway company, who alone on this indictment are to be regarded as the owners of the property. The railway company, the owners, having got their property back, make what must be considered a voluntary delivery of it to the receiver. The case is similar to Reg. v. Dolan, 6 Cox C. C. 449; 1 Dears. C. C. 436, where, stolen goods being found in the pockets of the thief by the owner, who sent for a policeman, and then, to trap the receiver, the goods were given to the thief to take them to the receiver's, which he did, and the receiver was afterwards arrested, it was held that the receiver was not guilty of feloniously receiving stolen goods, inasmuch as they were delivered to him under the authority of the owner. In that case Reg. v. Lyons, Car. & M. 217, was expressly overruled. Lord Campbell, C. J., said, in Reg. v. Dolan: "If an article once stolen has been restored to the owner, and he having had it fully in his possession, bails it for any particular purpose, how can any person who receives the article from the bailee be said to be guilty of receiving stolen goods within the meaning of the Act of Parliament ?" Hurst, for the prosecution.-Unless this case is distinguishable from Reg. v. Dolan, the conviction, it must be conceded, is wrong. But the facts of this case are more like the view taken by Cresswell, J., in Reg. v. Dolan, "that while the goods were in the hands of the policeman, they were in the custody of the law; and the owner could not have demanded them from the policeman, or maintained trover for them." In that case the real owner intervened, and had manual possession of the stolen goods; here he does not. The goods belonged to the railway passenger, and the company are only bailees. [MELLOR, J.-The policeman merely opened the bundle in the course of its transit to see what was in it, and then sent it according to its direction. It was in the hands of the policeman, not of the company. ERLE, C. J. Suppose a labourer steals wheat, and he sends it by a boy to his accomplice, and the policeman stops the boy, ascertains what he has got, then tells him to go on, and follows and apprehends the accomplice, is not the accomplice guilty of feloniously receiving? MELLOR, J.-Here the policeman does nothing to alter the destination of the bundle. The element of the real owner dealing with the stolen property is wanting in this case. KEATING, J.Scott directs the address to be changed.] The bundle was sent by the thieves through the railway company to the receivers; the real owner had nothing to do with this part of the transaction. [LUSH, J.-If the true owner had sued the company for the pro perty, the company could not have justified detaining or converting it.] If a policeman knows of stolen goods being in the hands of an innocent agent, and does not take possession for the owner, and the innocent agent, by the policeman's directions, delivers them to a receiver, that does not prevent the receiver being guilty of feloniously receiving. Pearce, in reply. - Before the bundle was sent out for delivery the thieves were in custody, and having secured them Carpenter then gives orders for the bundle to be delivered to the receiver. Carpenter was the servant of the railway company, who are the owners for the purpose of this indictment, and the delivery therefore was by the owners. [Erle, C. J., and Mellor, J. were of opinion that the conviction was right, but Martin, B., Keating and Lush, JJ. held the conviction wrong. In consequence of the prisoner having suffered half the term of imprisonment from inability to get bail and the further unavoidable delay, the case was not sent to be argued before all the judges.] MARTIN, B.-I think that this conviction was wrong on two grounds, the one substantial, the other formal. I think that Mr. Pearce's argument, founded on the indictment, that the property is there laid to be property of the railway company, is well founded; and it seems to me that Dolan's case applies to this. ERLE, C. J.-I am of opinion that the conviction was right. The question is whether, at the time this stolen property was received by the prisoner, it was the property of the London and Brighton Railway Company; and if so, whether, when the policeman Carpenter caused the delivery to be stopped for the purpose of detecting the parties implicated, it thereby lost the character of stolen property. If it had lost the character of stolen property at the time it was received by the prisoner, the receiving by her will not amount to felony. But in this case I think that the railway company, when they took this bundle into their possession, were acting as bailees of the thief, and were innocent agents in forwarding it to the receiver, and that the things did not lose their character of stolen property by what was done by the policeman. KEATING, J.-I agree with my brother Martin that the conviction was wrong. It seems conceded, on the authority of Dolan's case, that if the property had got back again for any time into the hands of the true owner, the conviction would be wrong. It is said that, in this case, the owners mentioned in the indictment, the railway company, were not the real owners, whereas in Dolan's case the real owner intervened. But I think there is no distinction in principle between this case and that. The railway company are alleged in the indictment to be the owners of the property, and we sitting here can recognise no other persons than them; they are the owners from whom the property was stolen, and it got back to their possession before it was received by the prisoner. I can see no real distinction between this case and REG. v. SCHMIDT. 1866. Felonious receiving. |