TECHNICALITIES OF THEFT.
THE tenderness of English law for the liberty of the sub
ject is marvellously exemplified in the proceedings of the Court for Crown Cases Reserved. Whenever a Judge on Circuit or other dignitary administering the criminal law comes across a prisoner whose case presents features of legal doubt or interest, apart from mere question of fact, he submits a case for the consideration of a Court composed of not less than five of the Judges of the Queen's Bench Division of the High Court of Justice. Occasionally even this august assembly fails to agree on the matters of law submitted to them, and then the usual course is to have the case reargued before practically the whole of the Judges of the Queen's Bench Division, the delicate consideration of the law going so far as sometimes to assign counsel to the accused, in order that no point in his favour may be missed. By this time all idea of criminality is pretty well lost sight of, and the prisoner finds himself in a position analogous to that of a surpassingly interesting patient in a hospital, whose case presents difficulties and complications demanding and receiving the gratuitous co-operation of the entire medical or surgical staff of the institution. The latest case which has exercised and divided the learning and experience of five of her Majesty's Judges, and has now been remitted to the consideration of the entire • body of the Common Law Bench, is one which, to the unpractised and lay mind, presents but little intrinsic or moral difficulty.
At the Leicester Assizes, last January, one Thomas Ashwell was charged before Mr. Justice Denman with the larceny or theft of a sovereign under the following circumstances. Ashwell meeting one Keogh at a public-house on the evening of January 8th last, asked him, about 8 p.m., to come into the yard, and then proffered the humble request that Keogh would lend him a shilling, accompanying the request with the usual statement that he had money to receive on the morrow, and would then repay the loan. Keogh acceded to the request ; and, putting his hand in his pocket, drew forth what he believed to be the desired shilling, but what was in effect a sovereign, which he handed to Ashwell, who received it, 80 far as the evidence goes, in equal ignorance of its real quality. Keogh, with the consciousness of a good action performed, then left the yard for his home. Ashwell, at or about 9 the same evening, obtained change for the sovereign at another public-house, having in the intervening hour obviously ascertained the unexpected liberality of the involuntary loan. Keogh, presumably in turning-out his pockets, discovered his loss; for as early as 5.20 the next morning he betook himself to Ashwell's abode, and informed him of the mistake he had committed the previous evening. Ashwell, however, seems to have found the unexpected possession of a sovereign too much for his sense of morality, inasmuch as he first denied having ever received such a coin, and then, becoming embarrassed, gave contradictory accounts as to the sovereign he had unquestionably changed the night before, subsequently admitting that "I had the sovereign, and spent half of it ; but adding the curious non sequitur that "I shan't give it him back, because I only asked him to lend me a shilling." To the untutored mind, as we have said, these circumstances and admissions
might seem sufficient to brand Mr. Ashwell as a thief. Not so hastily, however, do lawyers judge. To constitute the crime of larceny certain elements must coexist. • There must be a taking and carrying-away of the articles alleged to have been stolen ; such things must be such as can be the subject of larceny, and the taking and carrying-away must be done (tante furandi, that is to say, with a felonious intent to convert them to the taker's own use, and permanently deprive the real, owner of the property therein.
But it is well settled in law that the taking may be either actual or constructive. Thus, provided the element of felonious intent be present, a man may commit larceny of goods which he finds in the highway, presumably lost ; or of things which the true owner himself has handed to him intending to part with the possession, but not the property, or having, by reason of some mistaken impression, not necessarily induced by the receiver, no intention at all of parting with the article actually trans ferred. On this point one of the questions in Ashwell's• case turned, inasmuch as it was contended for him that Keogh intended to part with both the possession and property in the coin, whatever it was, which he handed to Ashwell, and that, therefore, there was no wrongful taking. This contention certainly does not appear -tenable either in common-sense or on the authorities. It is clear that Keogh had in his mind that it was a shilling he was parting with to Ashwell, that he had no idea that it was a sovereign, or the slightest intention of transfening a sovereign or anything else than a shilling. He was a party certainly to the mere mechanical action which passed a metal disc from his hand to Ashwell's ; but the mistake affecting his brain was sufficient to render him for the time being incapable of affecting his own legal rights, or passing the property in that as to the nature of which he was ignorant,—nay more, mistaken. In this respect, the case much resembled that of "Regina v. Middleton," which was much cited and discussed during the argument. There Middleton, having to receive 10s. from a Post-Office Savingsbank, produced to the clerk a warrant for that amount. The clerk, referring by mistake to another letter of advice, put on the counter £8 16s. 10d., which Middleton took-up and appropriated. The majority of the Judges held that the mistake as to the person to whom the money was being handed was sufficient to obviate what might otherwise have been
an intention to transfer the property in it. It is difficult to .see what effectual difference in this respect can be established between mistake as to the identity of the person to whom a thing is given, and mistake as to the nature of the thing given. But the resemblance between the two cases ceases to afford much assistance when we come to consider the other essential element in larceny, namely, the presence of a felonious mind in the taker of the article. It has been generally assumed that the felonious intention must attach at the moment when physical possession is taken of the article ; and the doctrine has been applied in the case of a finder of lost articles, the property in which he cannot reasonably suppose the real owner to have intentionally abandoned. In such cases, if the finder, at the time of taking possession, knows who the owner is, or has reasonable grounds for supposing he could be found, and yet resolves to appropriate the article found and does so, he is guilty of theft. If, however, at the time of taking possession of the article, he has no such knowledge or grounds of belief, the subsequent acquisition of such knowledge will not make him a thief, even though, with such knowledge, he retain the article against the rightful owner. Neither in Middleton's case nor in the present one does any question of the taker's knowledge of the ownership arise. In Middleton's case there could further be no question but that the moment the prisoner saw the money deposited on the counter he formulated the intention of taking it, and accordingly took it ; but the difficulty in the present case is that Ashwell presumably took the sovereign in ignorance of its being other than a shilling, and also presumably, the moment he found it was a sovereign, determined to keep it. At the moment of his physical apprehension of the sovereign, he had no felonious intention ; at the moment of his mental apprehension, he formed such intention.
The point is unquestionably a very delicate one, and is treated as doubtful in Mr. Justice Stephen's "Digest of Criminal Law," where, after laying down the law as deducible from "Regina v. Middleton," the author adds :—" But it is doubtful whether it is theft fraudulently to convert property given to the person converting it under a mistake of which that person was not aware when he received it." And the discussion of last Saturday has not done much to remove the doubt. Lord Coleridge struggled manfully on behalf of the common-sense view of the matter, but was unfortunate in his selection of illustrations, almost every one of which landed him in the meshes of some previously decided case. And, indeed, some of the previously-decided cases are so contradictory, that it would be difficult to steer clear of them, and a selection for reversal will probably have to be made. In one a man received a letter addressed and containing a cheque payable to another person of the same name as himself. He received the letter innocently; but on discovering the mistake, converted the cheque to his own use. This is held to be no theft. A man buys a bureau at a public auction, and finds in a secret drawer property clearly not intended to be sold with the bureau. He converts it to his own use. This is held to be theft. Here we have two cases similar in all essential respects to the present one, inasmuch as an interval of time elapsed between what we have termed the physical and the mental apprehension of the article, with a felonious intent immediately coincident with the latter. Two Courts, however, came to diametrically opposed conclusions ; so neither case goes for much. A case, theoretical no doubt, but still bearing the authority of eight Judges, was incidentally propounded and settled in Middleton's case, and is not only exactly in point, but shows a light in which the question intimately interests the public at large. The case supposed was that of a person handing a cabman a sovereign by mistake for a shilling, and eight Judges, after careful consideration, decided that the property in the sovereign would not vest in the cabman ; and the question whether the cabman was guilty of larceny or not would depend upon this,— whether he, at the time he took the sovereign, was aware of the mistake, and had then the guilty intent, the annnus furandi. Various ingenious complications of this case were indulged in by the Court during the argument of Ashwell's case. Mr. Justice Grove suggested that it would be strange if the law were that if a person gives a sovereign for a shilling by daylight it is larceny in the receiver, but by lamplight not so ; and the same learned Judge, referring to a slight personal infirmity of his own, by reason of which there was a difference in the sense of perception between his right hand and his left, suggested that if he took the supposed shilling with one hand, he might be guilty of larceny, but not if he took it with the other.
Such is the question on which the minds of all her Majesty's Common Law Judges will shortly be exercised. We scarcely venture to offer any opinion ; but it does seem as if there were a great deal to be said in favour of making the time when the receiver's mind is first opened to a sense of the mistake the punctum tempoi is at which the test of the felonious intent should be applied. It is impossible that the felonious intent should attach at the earlier date of the mere physical taking, inasmuch as there is then nothing to excite or suggest such intent. If, moreover, the delivery by mistake be held no delivery, why should not the physical taking by mistake be held no taking ? Mr. Justice Stephen says a taking is the act of the band, not of the mind ; but this strict interpretation leads to so dangerous a conclusion, that it is to be hoped a majority of the Judges may look at the point in a more satisfactory manner,—otherwise we seem in a fair way of making the eighth Commandment of no avail through our traditions. Meantime, people will do well to examine carefully the coins they hand in the dark to cabmen and other persons in the lower ranks of life ; since, if a cabman feels himself safe from the criminal law, he may be unlikely to disgorge under threat of civil process, the only remedy available, if the prisoner's view in the present case be adopted.
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