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Resetter not participant in taking.
To carry off articles from a wreck, though all on board have perished, is a criminal act, punishable by an arbitrary pain (1). And by statute (2) any person who takes to a foreign place "any ship or boat "stranded, derelict, or otherwise in distress, on or near "the shore of the sea or any tidal water, situate "within the limits of the United Kingdom, or any "part of the cargo or apparel thereof, or anything "belonging thereto, or any wreck found within such "limits as aforesaid, and there sells the same," is liable to penal servitude not exceeding five years (3).
This crime consists in knowingly receiving articles previously taken by theft, stouthrief (4), or robbery, and feloniously retaining them (5). The distinction between the thief or robber and the resetter, consists in the theft or robbery having been committed without the participation of the person who receives. Wherever there is no element of joint adventure between the two parties, and the one is not cognisant of the theft until after it has been committed, however short be the interval between the theft or robbery and
1 Hume i. 485, 486.-Alison i. 640. If any person be in charge of the vessel the act is theft or stouthrief as the case may be. It may even be a question whether taking goods from a wreck is not theft in every case.
2 Act 17 and 18 Vict. c. 104, $479.
3 See Penal Servitude Amendment Act, 27 and 28 Vict., c. 47.
4 Hume i. 113.-Alison i. 328. 5 Daniel Clark, H.C., June 10th 1867; 5 Irv. 437 and 39 S.J. 475, and 4 S.L.R. 83.
his coming to the knowledge of it, he can only be con- QUALITIES OF victed of reset (1).'
be stolen, or
The property must have been truly stolen, or taken Property must by robbery or stouthrief. In one case the police, after taken by robbery capturing the thief, returned the property to him, that he might get it resetted by a broker, who, he said, had instigated him to the theft; by whom accordingly it was received. This, it was argued, was not reset, as the property was truly in the possession of the police, and the thief acted only as the messenger of the police in taking it to the receiver. The Court did not decide the point, but the charge was withdrawn from the jury (2).
know property to
And there Actual receiving
There must be absolute knowledge that the pro- Receiver must perty has been feloniously acquired. It is not suffi- be stolen. cient that the accused had suspicions (3). must be an actual receiving, either by his taking the property into his possession, or by his being art and part in its being hid away (4). It is not enough that he harbour the thief, if the property do not pass into his custody, but remain on the thief's person (5). On Not necessary the other hand, it is not necessary that the resetter that property be directly informed that the property has been stolen (6). Neither does it matter whether he re- Reset not direct ceive it directly from the thief, or through other hands (7), nor on what footing he receives, whether Purchase, pledge, by purchasing the property, or lending upon it, or
or mere custody.
Johnie in note 1.-Alison i. 329,
4 Hume i. 113.—Alison i. 328.
7 Hume i. 114.-Alison i. 329.
1 Rob. Black and Agnes Scott or Black, March 16th 1841; Bell's Notes, 46.-John Mackenzie and Eliza Johnston, H.C., Nov. 2d 1846; Ark. 135.
2 Alex. Hamilton, Jan. 21st 1833; Bell's Notes 46 and 5 S.J. 207. The reports do not show clearly how the matter was dealt with.
3 Hume i. 114, and case of * For the rules as to the previous concert which constitutes guilt of the theft or robbery, vide 46 to 48.
Connivance at hiding by thief.
ing of theft.
Intent to retain from owner essential
QUALITIES OF merely agreeing to take charge of it (1). Indeed, he
need not take it into his possession by handling it at all. If the thief with his knowledge hide the pro
perty, even in a hole in a wall, and he connive at Innocent receiver this, he is guilty of reset. Further, it is not necescontinuing to hold niter learn- sary that the guilty knowledge be simultaneous with
the receiving. If a person receive property, and afterwards come to the knowledge that it is stolen, he commits reset if he continue to keep it (2).
There must be the criminal intention of retaining the property from the owner (3). It is of course no crime to take stolen property from a thief in order to restore it to the proprietor, or deliver it up to the authorities. But the receiving with intent to retain is sufficient, without continued retention. If a thief leave his booty with a person who knows it to be stolen, only for an hour or two or even for a shorter time, till opportunity present itself to dispose of it, reset is committed (4). This will even hold if a thief being pursued, rush into a house and hand the property to a friend, and it be immediately thereafter found in his pocket, or thrust into a hiding-place (5).
A wife is not in the ordinary case held guilty of reset peculiar.
if she conceal property to screen her husband, without proof of active participation (6).
It is not reset to receive the produce of the sale or pledging of stolen property.
But where the property stolen is money the question has been raised, though not decided, whether, if the thief have got the money changed, it is reset to receive the change (7). It is thought that reset in the case of money must be
Retention for short time suthicient.
Case of wife
Reset must be of specific articles stolen.
1 Hume i. 113.-Alison i. 329.More ii. 385.
2 Helen Russell and others, July 14th 1832 ; Bell's Notes 46.
3 Hume i. 115. 4 Alison i. 333.
5 Alison i. 333, 334, and case of Finlay and others there.
6 Alison i. 338, 339, and case of Rennie there.—John Hamilton aud Mary Garden or Hamilton, H.C., Jan. 2d 1849; J. Shaw 149.
7 Will. L. White and others, Perth, April 21st 1848 ; Ark 459.
theft or "habit
judged of by the same principles as in the case of QUALITIES OF other articles. Any other rule would lead to rather anomalous results. It has been held in the case of the theft of money that the sort of money must be described, and of course the money described as stolen could not correspond with the proof as to the money received from the thief, if, after stealing a one-pound note, he first changed it into silver and then gave it to the person accused of reset (1).
Reset may be aggravated by previous conviction of AGGRAVATIONS. the same crime, but whether a previous conviction of Previous conreset of robbery could be libelled as an aggravation of a charge of reset of theft and vice versa, is a question which has not yet presented itself for decision. It is Prev. con. of not competent to charge such aggravations as that the and repute" inaccused iş habit and repute a thief, or that he has been previously convicted of theft (2), or is habit and re- Habit and repute a resetter (3). An attempt was once made to Reset by parents charge as an aggravation that the resetters were the parents of the thief, the goods being stolen from his employers (4). It is possible that such an aggravation might be held relevant. But if the thief stole by the instigation of his parents, then it would be more correct to charge them as art and part of the theft. On the other hand, if they were not cognisant of the theft till after its commission, its seems a slender ground for charging a special aggravation that the goods taken were the property of the thief's employer. But if the Reset by con
stable or jailor resetter were a person whose special duty it was to protect property and prevent crime, there can be no
1 See W. White and others, Glasgow, Sept. 26th 1823 : Shaw 106.
2 Houston Cathie, H.C., Jan. 27th 1823; Shaw 93.-Alison 1. 301.
3 Case of Cathie, supra.-Alison i. 302.---See also Burns v. Hart and
Young, H.C., Dec. 19th 1856; 2
4 Alex. M'Craw, jun., and others, July 20th 1831 ; Bell's Notes 187. (The aggravation was withdrawn, there being no sufficient averment of it in the narrative given in the indictment.)
AGGRAVATIONS. doubt that in this case reset would be held
aggravated. For example, if a jailor or police officer were to receive stolen property from a thief, this would be reset of a very aggravated description (1).
Reset is punished either by imprisonment or penal servitude according to circumstances. By statute (2), reset of goods taken from bleachfields is a capital offence, but the pains of law are invariably restricted, and the court have now power to inflict fourteen years' penal servitude in lieu of a sentence of death (3).
BREACH OF TRUST AND EMBEZZLEMENT (4).
As already observed, it is often extremely difficult AND BREACH OF in particular cases to trace the distinction between
this crime and theft. And the rules given in the Law developed in treatises on criminal Law are now quite untrustworthy,
for many cases which were formerly dealt with as breaches of trust are now tried as thefts. Appropriations of parcels by carriers, or of articles of dress by servants,—even though worn on their own persons—if given for a specific use; appropriations of money by tellers of banks, or of articles given to tradesmen to
1 One indictment has been found Wood's Coll.) But the terms of containing such a charge. Mar- the Act recognise such offences as garet M‘Gillivray and Jas. Halli- being punishable in Scotland, being day, H.C., 1832; Adv. Lib. Coll. passed because doubt existed as to 2 Act 18 Geo. II, c. 27.
whether they were felony in 3 Penal Servitude Acts 16 & 17 England, and of the expediency of Vict. c. 99, -20 & 21 Vict. c. 3.- their being punished in the same 27 and 28 Vict. c. 47.
manner in both parts of the United 4 Offences of this class are Kingdom. The Acts 17 Geo. III. c. alınost always prosecuted 56, and 2 Will. IV, c. 4, are also common law, except in post-office sometimes libelled
The Act 39th Geo. III. mary cases. Smith v. Anderson, c. 85, seems
time H.C., Dec. 24th 1867 ; 5 S.L. R. 135. have been occasionally libelled -John Macleod, Inverness, April on (Ebenezer Anderson, Perth, 28th 1858 ; 3 Irv. 79. April 9th 1828 ; Indictment Lord