REG.

V.

ROGERS.

1877.

Embezzlement

-Venue.

servant, shall fraudulently embezzle any chattel, money, or valuable security, which shall be delivered to, or received or taken into possession by him for or in the name or on account of his master or employer, or any part thereof, shall be deemed to have feloniously stolen the same from his master or employer." The act of embezzlement is therefore a stealing of the master's money. The evidence of the act of embezzlement is the receipt of the money by the servant, and the appropriation of it to his own use; and the non-accounting or refusal to account for the money received is evidence merely to show that the servant has stolen it. In the present case the facts show that it was the prisoner's duty to have remitted the moneys received at once to his masters. By hat I do not understand to remit in the course of the week, but by the next post, or within a reasonable time. The prisoner received the money on the 18th day of April at York, and he wrote two letters from Hull on the 19th and 20th days of April, by each of which he ought, in the course of his duty, to have remitted the money, and his not having done so was very good evidence that he had then appropriated to his own use the money which he had received at York on the 18th. Then again on the 21st day of April, when at Doncaster, he wrote a letter to his masters, by which, as the jury have found, the prisoner intended his masters to believe that he had not then received that money, and he had thus, in effect, rendered a wilfully false account. There is strong evidence that before the 19th or 20th day of April, and on the finding of the jury, strong evidence that on the 21st the prisoner had embezzled the money in Yorkshire; and I think therefore that the stealing of the money took place in Yorkshire. The offence was a complete offence in Yorkshire when the letter containing the statement that he had not received it was written and posted. When it reached the master's mind, in my opinion, is not material. When the letter containing the false statement was put in the post it could not be recalled, and if the letter had not reached its destination the offence would have still been complete in Yorkshire. So far as regards principle. Then how stands the case as to the authorities? As to the cases of libel and false pretences: in libel the main ingredient is the uttering or publication of the libel, and in Rex v. Burdett the libel was published where the letter was received, in the county of Middlesex. So, as to the crime of false pretences, the offence is not complete until the false pretences reach or are made to the person intended to be defrauded. In the case of a false pretence made by letter, the .offence is not complete until the letter is received. As to the cases of embezzlement. In Rex v. Hobson the prisoner received the money in Shropshire, his orders being to take it to his master in Staffordshire the same night. He did not take it, but on the following evening told his master in Staffordshire that he had not received it; and the majority of the Judges were of opinion that the indictment might be tried in Shropshire, where the prisoner

received the money, "the statute having made the receiving
property and embezzling it amount to a larceny, made the offence
a felony where the property was first taken, and the offender
might therefore be indicted in that or in any other county into
which he carried the property." In the case of Rer v. Taylor the
prisoner, after receiving the money in Surrey, returned to his
master in Middlesex, and told him he had not received it, and
that was held to be good evidence of the offence having been
committed in Middlesex, because there was nothing to show that
the prisoner had appropriated the money to his own use in Surrey.
Lord Alvanley, C.J., in delivering the judgment of the Court,
said: "In the present case no doubt can be entertained. The
prisoner, being sent over Blackfriars Bridge into the county of
Surrey, there received 10s. for his master. The receipt of that
money was perfectly legal, and there was no evidence that he ever
came to the determination of appropriating the money to his own
use until after he had returned into the county of Middlesex. It was
not proved that the money ever was embezzled until the prisoner
was in the county of Middlesex. In cases of this sort the nature
of the thing embezzled ought not to be laid out of the question.
The receipt of money is not like the receipt of an individual
thing, where the receipt may be attended with circumstances which
plainly indicate an intention to steal, by showing an intention in
the receiver to appropriate the thing to his own use. Thus, if a
servant receive a horse for his master, and sell it before he gets
out of the county where he first received it, it might be said
that he is guilty of the whole offence in the county." In the
present case the receipt of the money was in Yorkshire, and the
three letters written in Yorkshire were evidence of the prisoner's
intention to appropriate the money in Yorkshire, and therefore
the offence was complete in Yorkshire. Lord Alvanley, C.J.
then proceeds: "But, with respect to money, it is not neces-
sary that the servant should deliver over to his master the
identical pieces of money which he receives, if he should have
lawful occasion to pay them away. In such a case as this,
therefore, even if there had been evidence of the prisoner having
spent the money on the other side of Blackfriars Bridge, it would
not necessarily confine the trial of the offence to the county of
Surrey. But here there is no evidence of any act to bring the
prisoner within the statute until he is called upon by his master
to account. When called upon by his master to account for the
money the prisoner denied that he had ever received it.
was the first act from which the jury could with certainty say
that the prisoner intended to embezzle the money. In this case
there was no evidence of the prisoner having done any act to
embezzle in the county of Surrey, nor could the offence be
complete, nor the prisoner be guilty, within the statute until he
refused to account to his master. We are, therefore, of opinion
that the prisoner was properly indicted in the county of Middle-
sex." Here the first act-the receipt of the money-was in

REG.

v.

ROGERS.

1877.

Embezzlement

Venue.

REG.

v.

ROGERS.

1877.

Embezzlement

- Venue.

Yorkshire, and all the three letters, evidencing the intent to appropriate the money, were written in Yorkshire. The offence therefore, in my opinion, was complete in Yorkshire. This opinion is supported by the judgment of Maule, J. in Reg. v. Murdock. Lord Campbell, C.J. there said: "The jury may have thought that the story which the prisoner told of having spent the money was false, or that he had spent it in the town of Nottingham." Parke, B. said: "I think on consideration that there was evidence for the jury of an embezzlement in Nottingham by reason of the prisoner's not returning and accounting to his master in Nottingham as he ought to have done. The fact of his spending the money is not of itself a sufficient embezzlement." Maule, J. said: "I agree in the conclusion at which my Lord Campbell and my brother Parke have arrived; but I do not agree in the view which the latter has taken of the matter. It appears to me that there was evidence to go to the jury that the offence was committed when the prisoner met his master in Nottingham, and, being asked by him for the money, did not pay over the amount. The mere omission to account, if the prisoner never had returned to the town of Nottingham, would not in my view of the law have rendered him liable to be tried in Nottingham. Suppose that he had gone to Derbyshire and spent the money there, and stayed there six months, and had never returned to Nottingham, but had been afterwards apprehended in Derbyshire, according to my brother Parke's view the prisoner would have been indictable in Nottingham. But I cannot think that that can be the case. The man, when he went into Derbyshire, went upon a lawful errand: it was his duty to receive the money. If he never afterwards returned into Nottingham, he could not, I think, be guilty of embezzlement in Nottingham. The cases which say that nonaccounting is sufficient evidence of embezzlement have all this fact, that the man is in the county in which he refuses to account." Martin, B. took the same view as Maule, J. in that case. In my opinion, therefore, the crime of embezzlement is complete the moment the servant intends to steal his master's money, and here that was shown to be in Yorkshire. In Reg. v. Davison it was held, and as I think correctly, that the nonaccounting was not the crime of embezzlement. The stealing is the crime, the non-accounting merely evidence of it; and, as the evidence in the present case shows that the stealing was in Yorkshire, I think, therefore, that there was no jurisdiction in the county of Middlesex, and that the conviction cannot be sustained.

LINDLEY, J.-I am of opinion that this conviction should be affirmed on the ground that a material part of the offence, that is, the fraudulently non-accounting for the money, was committed in the county of Middlesex by the posting at Doncaster of the letter of the 21st day of April addressed to and received by and intended to reach the prosecutors in Middlesex. In that letter

there was a fraudulent representation made in Doncaster, which continued until it reached the master of the prisoner in Middlesex. That was a fraudulent act, and a continuing act; and I am therefore of opinion that there was jurisdiction to try this indictment in the county of Middlesex.

MANISTY, J.-I am also of opinion that the conviction should be affirmed. The consequences would be very serious if we were to hold that a prisoner could only be indicted in the county in which the offence was first committed. Take the present case. The prisoner was arrested on the 2nd day of May, in Newcastle; and there was evidence that he had then appropriated the money, and there was evidence of the embezzlement therefore in Newcastle. If he had been indicted there, could the prisoner have said, I committed the offence in the county of Middlesex by fraudulently stating I had not received the money, and therefore I ought to be tried there? Here he wrote from Yorkshire to his masters in Middlesex, which is just the same as if he in person had said it in the county of Middlesex. He was properly indicted in Middlesex, although he might also have been indicted in Yorkshire.

Conviction affirmed.

REG.

V.

ROGERS.

1877.

Embezzlement
-Venue.

COURT OF CRIMINAL APPEAL.

Saturday, Jan. 19, 1878.

(Before COCKBURN, C.J., CLEASBY, B., LINDLEY, J., MANISTY, J., and HAWKINS, J.)

REG. v. KNIGHT. (a)

Debtors Act 1869-Indictment -Aider by verdict-Obtaining credit by false pretences and fraudulently disposing of goods within four months before liquidation-32 & 33 Vict. c. 62, s. 11, subsects. 14 & 15.

An indictment charged that the defendant, a trader, " did within four months next before the commencement of the liquidation by arrangement of his affairs obtain from W. goods upon credit under the false pretence, &c., with intent to defraud." And in another count in similar terms the defendant was charged with inlawfully disposing of the goods otherwise than in the ordinary

(u) Reported by JOHN THOMPSON, Esq., Barrister-at-Law.

REG.

v.

KNIGHT.

1878.

Debtors Act

1869, s. 11IndictmentOrder of verdict.

way of his trade. Both counts were framed under sect. 11, subsects. 14 and 15, of 32 & 33 Vict. c. 62.

Held, that the counts were good after verdict, and sufficiently averred that the defendant was a person whose affairs were liquidated by arrangement within the meaning of sect. 11.

AT

T the General Quarter Sessions of the Peace for the borough of Birmingham, held at Birmingham, before the Recorder, on the 22nd day of October, 1877, an indictment, of which the following is a copy, came on to be tried against the defendant, framed upon sub-sects. 14 & 15 of 32 & 33 Vict. c. 62 (The Debtors Act, 1869).

Borough of Birmingham to wit.-The jurors for our Lady the Queen, upon their oaths present, that heretofore and before the committing of the offences by William Augustus Knight as hereinafter mentioned, the said William Augustus Knight was a trader within the true intent and meaning of the laws then and now in force relating to bankrupts. And the jurors aforesaid, upon their oath aforesaid, do further present, that afterwards, and whilst the said William Augustus Knight was such trader as aforesaid (to wit), on or about the 12th day of April, 1877, the said William Augustus Knight did, within four months next before the commencement of the liquidation by arrangement of his affairs, obtain from Westwick and Co., spice merchants of London, five cases of Cochin Ginger upon credit, under the false pretence of carrying on business and dealing in the ordinary way of his trade, and has not paid for the same, with intent to defraud, against the form of the statute in such case made and provided.

2nd count. And the jurors aforesaid, upon their oath aforesaid, do further present, that whilst the said William Augustus Knight was such trader as aforesaid (to wit), on or about the 9th day of May, 1877, the said William Augustus Knight did, within four months next, before the commencement of the liquidation by arrangement of his affairs, unlawfully dispose of, otherwise than in the ordinary way of his trade, certain property (to wit), five cases of Cochin Ginger, which he had obtained on credit, and had not paid for, with intent then and there to defraud, against the form of the statute in such case made and provided.

3rd count.-And the jurors aforesaid, upon their oath aforesaid, do further present, that whilst the said William Augustus Knight was such trader as aforesaid (to wit), on or about the 3rd day of May, 1877, the said William Augustus Knight did, within four months next before the commencement of the liquidation by arrangement of his affairs, obtain from Joseph Brook and Co., of Birmingham, twenty cads (or boxes) of Caper Tea upon credit, under the false pretence of carrying on business and dealing in the ordinary way of his trade, and has not paid for the same, with intent to defraud, against the form of the statute in such case made and provided.