REG. v. HANCOCK AND 1878. Receiving- Held, that the prisoner could not be convicted of feloniously receiving the cigars knowing them to be stolen, for that they were not stolen property at the time they were received, the master and the policeman having acted in concert in supplying the lad with the six cigars, and instructing him what to do with them. CASH NASE reserved for the opinion of this Court by W. F. Harrison, Esq., Chairman of the Second Court at the General Quarter Sessions of the peace for the county of Surrey, held by adjournment at St. Mary Newington, on the 3rd day of June, 1878. William Emmett Hancock and Henry Robert Baker were tried upon the following indictment: Surrey. The jurors for our Lady the Queen, on their oath present, that William Emmett Hancock, on the 23rd day of May, 1878, then being servant to James Gabriel, one cigar of the property of the said James Gabriel, his master, feloniously did steal, take, and carry away, against the form of the statute in such case made and provided. Second count. And the jurors aforesaid, upon their oath aforesaid, do further present, that Henry Robert Baker on the same day and in the year aforesaid, one cigar (being the same property as the said William Emmett Hancock in the first count of this indictment is charged with stealing) of the property of the said James Gabriel, before then feloniously stolen, taken, and carried away, feloniously did receive and have, the said Henry Robert Baker then well knowing the same to have been feloniously stolen, taken, and carried away, against the form of the statute in such case made and provided. The prisoner Hancock having pleaded guilty, the following evidence was adduced in support of the charge against the other prisoner Baker. James Gabriel proved that he was a cigar manufacturer, at 320, Walworth-road, in the parish of St. Mary, Newington, in this county, and that the prisoner Hancock entered his service as shop boy on the day named in the indictment. That about seven in the evening, as the prisoner was about to leave work for the day, the witness saw him take a cigar (without permission) from the mantelshelf of the shop, and put it in his pocket. That witness having already missed goods, sent for a detective, and obtained the services of Edmund Reid, an officer of the P Division. That witness saw Reid take the cigar from Hancock and mark it, and then give it back to the prisoner with five others and certain instructions. This witness stated in cross-examination that he occasionally had in his possession broken cigars, which he worked up again, and was never in the habit of giving them to persons in his employ. REG. บ. HANCOCK AND 1878. Evidence. Edmund Reid proved that he was a detective officer of the P Division, and that between seven and eight in the evening of the day in question he was called to the prosecutor's, and in his presence searched the prisoner Hancock, and found the cigar in his trousers pocket. That he questioned this prisoner, and, in consequence of what he learnt from him, marked the cigar Receivingand returned it to him, at the same time giving him five other cigars and instructions how to act. That this prisoner thereupon went, followed by Reid, to a coal store, in Smith-street, Portlandstreet, Walworth, where Reid saw the other prisoner Baker standing; that Hancock went up to Baker and handed something to him. That Reid then accosted Baker, telling him who he was, and inquired what Hancock had given him, to which inquiry Baker replied "Nothing," meaning that Hancock had given him nothing. To which Reid replied, "I saw him give you something." That Baker then said, "I know you are a constable, and here they are," at the same time handing Reid six cigars, one being the marked one. That Reid thereupon said to Baker, "You've incited this boy to rob his master, and received the cigars he has stolen." That another lad named Maunders was there at the time. That he then apprebended Baker, and took him to the police-station. The prisoner Hancock, a lad thirteen years of age, was then called for the prosecution and gave the following evidence: "On the 23rd May last I entered the employment of the prosecutor, and about seven p.m., on leaving work for the day, I took a cigar and put it in my pocket. Shortly after I gave it up to detective Reid, who returned it to me with some others. I took it because prisoner Baker, whom I knew, had told me to get him as many as I could. He had told me that day at dinner-time that if I did he would give me something on the following Saturday. I took all the six cigars to the coal store in Smith-street, where he works, and gave them to him. Detective Reid and William Maunders then came up, and Reid spoke to Baker, and then we all went to the policestation." In cross-examination this witness stated that before coming to prosecutor's he had been in a printing office in the city, which was his first place, and lost it through being absent from work part of a day to get fitted with some new clothes. That he never said anything to Baker about boys being allowed damaged cigars, nor told him that prosecutor had offered him (Hancock) damaged cigars. That Baker did not say to him, "Get me some damaged cigars," but "Get me as many as you can." William Maunders, another lad in the employ of the prosecutor, proved accompanying Hancock and detective Reid to Smith-street, and seeing Hancock hand some cigars to Baker, who said, “Thank you, I'll see you by-and-by, that'll do, won't it?" And then put them in his pocket; when some one standing near said, "Look out," and Baker then took them out of his REG. v. HANCOCK AND pocket and held them in his hand under his coat, and after something more was said, handed them to Reid. This witness stated in cross-examination that he had been two years in the prosecutor's employment, and that the latter had never given him a broken cigar. That when cigars were Receiving damaged they were made up afresh. 1878. Evidence. The statement made by the prisoner Baker before the committing magistrate was then put in and read as follows: "Yesterday at dinner time Hancock came round to the coal shed and said, 'I have started work, Harry.' I said, 'Where at?' He said, 'At Gabriel's in the Walworth-road.' He said, 'Other boys have damaged cigars given them what gets chucked into the damaged bag, and Mr. Gabriel offered me two at dinner time.' He said, 'I wouldn't have them then, but Mr. Gabriel said he would give me some more to-night when I leave off work.' I said, 'I'll buy them of you.' This closed the case for the prosecution. The prisoner Baker's counsel then submitted that there was no case to go to the jury, on the ground that the stolen cigar, the subject of the indictment, had been taken out of the possession of the thief by the detective officer in the presence of the owner, and was therefore not stolen goods when the prisoner Baker received it; and the case of Reg. v. Dolan (Dearsley C. C. 436; 6 Cox C. C. 449) was cited and relied on. I refused, however, to stop the case, and told the jury, after the usual caution as to the prisoner's (Hancock's) evidence, that if they believed that the prisoner Baker received the marked cigar from Hancock with the knowledge and belief that the latter had stolen it, they ought to find him (Baker) guilty. The prisoner having been convicted, his counsel applied that a case might be reserved for the opinion of this honourable court, which the court assented to, the judgment on the prisoner Baker being respited in the meantime, and the prisoner released on bail. If the court should be of opinion that the conviction was right, it is to stand; otherwise it is to be quashed. Baggallay, for the prisoner Baker, submitted, on the authority of Reg. v. Dolan (Dears. C. C. 436; 6 Cox C. C. 449), that the conviction was wrong. At the time Baker received the cigar from Hancock it had ceased to be a stolen chattel, it having been previously restored to its owners and given back to Hancock for a specified object. The fact that five other cigars along with the one Hancock had taken were given to him to take to Baker showed that Hancock was then acting under the owner's instructions. COCKBURN, C.J.-At the time the cigar was received by the prisoner, it had been reduced into the possession of the master, or, if you please, of the police, and Hancock was then employed as an instrument to detect Baker. REG. v. HANCOCK AND 1878. Evidence. HUDDLESTON, B.-The cigar was taken by the policeman, and the instructions to Hancock what to do with it were given by the policeman, but then the master was present all the time. In Reg. v. Dolan, Cresswell, J. said: "If it were necessary to hold that the policeman by taking the stolen goods out of the pocket of Rogers restored the possession of them to the owner, ReceivingI should dissent. The goods in the policeman's hands were in the custody of the law, and the master could not have brought trover for them; but when they were given back to Rogers, and the master desired him to go and sell them, the master, I think, may be said to have employed Rogers for that purpose." That learned judge treated the thief as the agent of the master, for the purpose of detecting the receiver. COCKBURN, C.J.-In Reg. v. Dolan Lord Campbell evidently assumed that what was done in that case by the police was done in concert with the master. I should infer the same in the present case. When Lilley for the prosecution.-The conviction was right. the cigar was taken from the prisoner Hancock by the police, it was in the custody of the law, and the policeman was not bound to restore it to the master. Here the master gave no authority to the policeman to act as he did. [COCKBURN, C.J.-Who gave the other five cigars to the policeman to give to him?] COCKBURN, C.J.-The present case is undistinguishable in principle from Reg. v. Dolan, and the conviction must be quashed. Conviction quashed. The rest of the Court concurred. Freland. HIGH COURT OF JUSTICE. QUEEN'S BENCH DIVISION. May 2 and June 18. (Before MAY, C.J., FITZGERALD and BARRY, JJ.) HEGARTY V. SHINE. (a) Assault-Contagious disease-Fraudulent concealment — Immorality-Reg. v. Bennett, 4 F. & F. 1105, and Reg. v. Sinclair, 13 Cox C. Č. 28, dissented from. In an action for assault, it was proved that the defendant, who was infected with venereal disease, had sexual connection with the plaintiff with her consent, concealing from her the fact of his being diseased. The plaintiff becoming in consequence diseased, brought her action for assault; Held, per Fitzgerald and Barry, JJ. (May, C.J., dissentiente), that the action arose ex turpi causa, and could not be sustained. Semble, the fact of concealment of the disease from the plaintiff could not constitute an assault, she having consented to the sexual intercourse. A CTION for breach of promise of marriage and for assault. The plaintiff and defendant had been living in a state of concubinage, and the defendant being infected with venereal disease, of which the plaintiff had no knowledge, had sexual connection with her, and infected her with the disease. The action for breach of promise of marriage was not sustainable on the evidence. On the count for assault the jury found for plaintiff, damages 450l. A conditional order having been obtained to set aside the verdict, Heron, Q.C. (with him Johnson, Q.C. and Ronan) for the plaintiff showed cause.-There is no distinction between a civil and a criminal assault. The fact of infecting a person with venereal disease has been held an assault: (Reg. v. Bennett, 4 F. & F. (a) Reported by CECIL R. ROCHE, Esq., Barrister-at-Law. |