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Taking goods
froin fire or

tween theft and

One other case has been supposed of a limited THEPT OF PROcustody, that of a person assisting in saving goods from CUSTODY OF THE a wreck or a conflagration. In such a case it would now undoubtedly be held theft if the person assisting wreck. were to appropriate recovered property (1).

On the other hand, the crime will be breach of Distinction betrust and embezzlement, if the facts do not imply a breach of trust. mere custody, with a duty to deliver in forma specifica, or after the performance of a specified operation, but only a liability to account. In very many cases the distinction is so fine as to be almost inappreciable. In so far as the decisions make the matter capable of definition, the elements which bring the crime up to theft are these :

1. A person employed to carry a specific article (even notes or coin) to a certain place or individual, or to get a specific article, and bring it back then and there, commits theft if he appropriates it. (The case of a clerk sent with a cheque to draw money and bring it back, embraces both these elements.)

2. A person employed' to assist the owner in his business, not as an agent taking a general charge, or superintending over a local branch, but as an assistant under the master's eye, and on the master's premises, commits theft if he appropriates his employer's goods, or money he receives from customers.

3. A person sent with a specific article to dispose of it by sale or pledge, and then and there bring the money back, commits theft if he appropriates it. (This is only stated on the authority of obiter dicta.)

4. A person who receives an article, that he may perform a certain operation upon it and return it, commits theft if he appropriates it.

The question whether a particular case comes up to

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he made. In the former case the accused was fugitated, and in the latter a plea of breach of trust was

accepted, so that neither case forms
a direct authority.

1 Hume i. 62, 63, contra.



theft, may be matter of extreme nicety. The point at

CUSTODY OF THE which a shopman ceases to be the hand of his master,


Difficulties of distinction be

and becomes an agent, may be difficult to fix.


tween theft and very slight circumstances may turn the scale, that it is

breach of trust.

Concurrence before or at commission.

Accomplice watching.


ART AND PART OF The distinction between that participation which constitutes guilt art and part of theft, and that which amounts only to the crime of Reset of Theft, remains to be noticed. To constitute theft by participation, there must have been guilty concurrence before or at the time of the theft. If there is previous concert, it is not necessary that both parties should be together at the time. The most common case of this sort is that in which one commits the theft, while the other watches to prevent detection, the person who watches being guilty art and part. But the principie of previous concert is carried much farther than this. It is not necessary to constitute guilt as art and part by plice not cognis- previous concert, that the participator should have

Art and part though accom

ant of particular

knowledge of the particular act of theft committed.
If a gang of thieves go to a town, and lodge together,
conducting themselves so as to shew that they are
engaged in a joint adventure, then, though the sepa-
rate acts committed by each may have been unknown
to the others till after the perpetration, still they are
all guilty, art and part, of all the thefts (1). Where
there is general combination, the acts of each are the
acts of all. Nor is it necessary that all should go out

1 Hume i. 115, 116.-Alison i. 289, 290, 291.-i. 330, 331.

common to charge Theft and Breach of Trust alterna-
tively, leaving it to the judge to direct the jury which
offence is constituted by the facts. It is much to be
regretted that there should be two crimes, kept dis-
tinct in practice, when in reality the line which divides
them is so unsubstantial, particularly as the punish-
ment of both is discretionary, and it therefore matters
little under which nomen juris the accused is brought
to the bar.

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upon the thieving expedition. If one of them stay at ART AND PART. home to receive the plunder, and to stow it away, he is art and part with the rest, he receiving the stolen property, not by an arrangement unconnected with the theft, but in accordance with the previous plot (1). Indeed, in such a case, the one who remains at home may be the greatest criminal of the whole gang. If a Employing person of mature years employ young children to go to steal. out and steal, there cannot be a doubt that his guilt is higher than theirs (2).

young children


But further, it is not necessary to constitute guilt Concert at time as art and part of theft, that there should have been any previous concert, if concurrence at the time be proved. "It is sufficient if the party was conscious "of what was going on at the time-if he knew that


some article, no matter what, was about to be "stolen. If there was privity, even by so slight a "communication with the thief as a nod or a wink, "that would make the party so privy, guilty of theft "art and part" (3).

Is concurrence just after theft

Hume and Alison incline to hold that a person may be guilty as art and part of theft without previ- sufficient? ous concert or privity at the time, and put the case that a person steals an article, and instantly repairs to the house of a known thief, who secretes it, and receives a share (4). But it is thought that, although such facts might go far to indicate previous concert, still, unless in point of fact there had been such concert, the crime would not be theft but reset.

The general rule that previous conviction of a GENERAL AGGRA simple offence may be charged as aggravating a case THEFT.


1 Hume i. 116, case of Anderson and Marshall there, and case of Wright in note 2.

2 See Hume i. 116, case of Macdonald and Wilson in note 2.-See Scott and others, May 30th 1836; Bell's Notes 46.

3 John Mackenzie and Eliza Johnston, H.C., Nov. 2d 1846; Ark. 135 (Lord Justice Clerk Hope's charge). See also James Docherty and William Scott, Nov. 9th 1838; Bell's Notes 46.

4 Hume i. 115, 116.-Alison i.


Prev. con. of robbery competent.

of a more special kind, applies in the case of theft even to theft of that peculiar kind called Plagium (1). And the converse would hold, that a previous conviction of “theft, particularly Plagium,” might be charged as aggravating a case of ordinary theft. Previous convictions of robbery (2), or stouthrief (3), can

be charged as aggravations of theft. Habit and repute.

A repute that a party is a common thief, that is, gets his livelihood or supplements it by thieving, is an aggravation of theft (4). It is not necessary that

) his whole subsistence should be from thieving (5). If the accused is in employment or carrying on a business during the time the habit and repute is sworn to, it is a question for the Jury whether, in the circumstances, the repute is thereby taken off (6). It is not necessary that the accused should have been con

victed of theft (7), or even that he should have been Artive share in actively engaged in thieving. A bedridden person

may be habit and repute a thief, if he be the associate of thieves, and live by the proceeds of theft (8). And if the repute be proved, it has been laid down

that the Jury have nothing to do with the grounds of Doubtful reputa- it (9). But the character must be well established.

Prev, con, not necessary.

thefis not necessary.


1 Marion Rosmond or Skeoch, Glasgow, Sept. 26th 1855; 2 Irv. 234.

2 31 & 32 Vict., c. 95, $ 12.

3 This matter is left in some doubt by the decisions. Compare Johu Smith, Ayr, Oct. 2d 1860 ; 4 Irv. 50 note; and John Bryson and others, Glasgow, April 22d 1863; 4 Irv. 384 and 35 S. J. 460; but, for reasons to be stated in treating of stouthrief, it is thought that the decision in Smith's case was right.

4 Hume i 92.-Alison i. 296, 297.

5 James Howie, 27th Dec. 1831 ; Bell's Notes 28.

6 James Bell and others, H.C., Jan. 19th 1846 ; Ark. 1.

7 Hume i. 93, 94, and cases of

Turner: Glenduthill: Anderson : Walker: Gray: Elliot: Lawson : Henderson : Wilson and Macdonald: John Gordon: and Thomas Gordou there.— Alison i. 298, 299. - More ii. 383.

8 In the case of Patrick M Ghee and others, Glasgow, Oct. 2d 1861 (unreported) one of the accused was proved to have been bedridden for a considerable portion of period during which the repute was spoken to, but the objection that he could not be habit and repute a thief during that time was repelled.

9 Magaret M'Kenzie, H.C., Nov. 26th 1838 ; 2 Swin, 210 and Bell's Notes 31.

1 Hume i. 93, and case of Macdonald or Badenoch there.



tend to time of

Mere doubtful reputation is not sufficient (1). habit and repute must extend down to the time of Must repute exthe trial at which it is to be proved (2). Where a trial. thief was not tried till many years after the offence, it was held that evidence of his having been habit and repute a thief at the time of the offence, and that he had been fugitated, was not sufficient to convict him of the aggravation, there being no proof as to his character during the intervening years, and up to the time of his being again lodged in prison. This seems, however, not to have resulted from a general principle, but only from the form of libelling. It is thought that if the prosecutor, in such a case, libelled the charge thus-" and you, the said John Brown, "were, at the time of the act of theft above set forth, "habit and repute a thief," that the aggravation would be held relevantly charged (3).

repute continue.

It is a question not absolutely decided how long How long must the repute must continue to establish the aggravation. Formerly, periods of ten, nine, and even six months, were held sufficient (4). Latterly, any period under At least full a year was held insufficient (5). And very recently it has been decided that a bare


year is not enough In one case evidence

to establish the character (6).

Bell's Notes 29.-Rob. Robertson,
June 5th 1837; Bell's Notes 30.-
Will. Brash and Rob. White, H.C.,
March 17th 1840; 2 Swin. 500 and
Bell's Notes 30.

2 Will. Buchanan, Glasgow, Oct. 15th 1832; Bell's Notes 30. Arch. M Nicol, Glasgow, Dec. 1839; Bell's Notes 30.

3 Robert Heron, Perth, April 27th 1938; 2 Swin. 104 (Lord Moncrieff's opinion) and Bell's Notes 30.

4 Alison i. 300.-Alex. Smith, July 11th 1831; Bell's Notes 29.James Hamilton, 6th Nov. 1833; Bell's Notes 29.-Peter Wallace, Nov. 7th 1833; Bell's Notes 29.Thomas Whyte and Alexander Maclean, Dec. 2d 1834; Bell's Notes 29.

5 Jean Dickson or Benton, H.C., July 11th 1836; 1 Swin. 245 and


6 Jane M'Pherson or Dempster and others, H.C., Jan. 13th 1862; 4 Irv. 143 and 34 S. J. 140. It does not appear from the report of this case whether the year which was said to have elapsed since the previous imprisonment had been complete at the time of the alleged offence, or whether there was only a year between the previous imprisonment and the time of the trial for the new offence.

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