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AGGRAVATIONS. of trust and embezzlement, except where there has

been a previous conviction. But as in the case of theft or reset, it would probably be held a high aggravation that the person committing the breach of trust was a public official whose special duty it was to protect property (1).

The punishment of breach of trust and embezzleis imprisonment or penal servitude, according to circumstances.





Opening or detaining letters.

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The law as to these offences is contained in the Act 7 Will. IV. and 1 Vict. c. 36. It will be convenient to notice seriatim the offences which bear the character of theft, reset, or breach of trust (2).

$ 25. “Every person employed by or under the “ post-office (3), who shall, contrary to his duty, open,

or procure or suffer to be opened, a post letter, or “ shall wilfully detain or delay, or procure or suffer “ to be detained or delayed, a post letter,” commits a crime and offence, punishable by fine or imprisonment, or both, except in the cases of letters "returned for “ want of a true direction," or by reason that the

person to whom the same shall be directed is dead

or cannot be found, or shall have refused the same " or neglected to pay the postage thereof,” or in the case of letters opened, detained, or delayed, "in “ obedience to an express warrant in writing” of a principal Secretary of State in Great Britain, or in

1 There is one indictment in akin to Forgery and Fraud. which breach of trust is charged 3 For the scope of this term and as aggravated by its being com- the other terms used in this and the mitted by an officer of excise, in following sections, reference must the course of his employment as be made to the interpretation such. Tbos. Black, H.C., July clause (§ 47), which is too lengthy 16th 1828 ; Adv. Lib Coll.

to be quoted, and also Act 33 & 2 Some of the offences are more 34 Vict. c. 79, $ $ 6 and 16.


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letter from bag,

p. o. official, or

Ireland “under the hand and seal of the Lord Lieu- Post-OFFICE tenant of Ireland.” § 26. Every person employed under the post-Stealing,

embezzling, office, who shall steal, or shall for any purpose what-secreting, or

», destroying “ever embezzle, secrete, or destroy a post letter," letters. commits a high crime and offence, and is liable to penal servitude (1) for seven years, or imprisonment for not more than three years, and if such letter “shall "contain therein any chattel or money whatsoever, or valuables.

any valuable security,” the offender is liable to penal servitude for life.

$ 27. “Every person who shall steal from or out Stealing valu“ of a post letter any chattel or money, or valuable

security,” commits a high crime and offence, and is liable to penal servitude for life.

§ 28. “Every person who shall steal a post letter Stealing bag or bag, or a post letter from a post letter bag, or shall or from p. 0. or “steal a post letter from a post office, or from an maii. “ officer of the post office, or from a mail, or shall

stop a mail with intent to rob or search the same," Stopping mail to commits a high crime and offence, and is liable to penal servitude for life. It has been held that a con- Contravention travention of both the previous sections may be com- cumulative. mitted in reference to the same letter, i.e., that a person offending against § 28 by taking a letter, may offend against § 27 by thereafter stealing things out of the same letter (2). $ 29. “Every person who shall steal or unlawfully Taking or open

, “ take away a post letter bag sent by a post office or letter from it.

packet, or who shall steal or unlawfully take a letter “ out of any such bag, or shall unlawfully open any “ such bag,” commits a high crime and offence, and is liable to penal servitude for fourteen years. § 30. “Every person who shall receive any post Receiving

articles stolen, “ letter or post letter bag, or any chattel or money, or &c., as above.

1 Penal servitude is substituted 2 Alex. M'Kay, Inverness, Sept. for transportation by Acts 20 and 21 24th 1861; 4 Irv. 88. Vict. c. 3 & 27 & 28 Vict. c. 47.


of SS 27, 28,

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“ valuable security, the stealing, or taking, or em

bezzling, or secreting whereof shall amount to felony “ under the Post Office Acts, knowing the same to “ have been feloniously stolen, taken, embezzled, or “ secreted, and to have been sent, or to have been

intended to be sent by the post," commits a high crime and offence, and is liable to penal servitude for

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life (1).

Detaining letter
or found post

$ 31. “Every person who shall fraudulently retain,

or shall wilfully secrete or keep or detain, or being required to deliver up by an officer of the Post

Office, shall neglect or refuse to deliver up a post “ letter which ought to have been delivered to any “ other person, or a post letter bag or post letter “ which shall have been sent,” whether the same “sball have been found by the person secreting, keep“ing, or detaining, or neglecting, or refusing to deliver

up the same, or by any other person,” commits a crime and offence, and is liable to fine or imprisonment.

§ 32. “Every person employed in the Post-Office

“ who shall steal, or shall for any purpose embezzle, delaying printed “secrete, or destroy, or shall wilfully detain or delay

“in course of conveyance or delivery thereof by the
post, any printed votes or proceedings in Parliament,
or any printed newspaper, or any other printed
paper whatever, sent by the post without covers
covers open

at the sides,” commits a crime and offence, and is liable to fine or imprisonment, or both.

Under the older statutes the question arose whether post letter.

a letter delivered to a post runner, not as part of the mail, but privately, to be delivered to a certain person, was a letter within the provisions of the statutes (2).

Stealing, enbezzling, secreting, destroying, or



Scope of term

1 The remaining provisions of this section, relating to prosecu. tion, are of little or no value in

Scottish practice.

2 Alison i. 316, case of Ross there.

Now a letter is held a post letter from the time of its Post-OFFICE being delivered to a Post-Office, and delivery to a letter-carrier or other person, authorised to receive letters for the post, is held delivery to the PostOffice (1)

It is enacted by § 41 that offenders liable under Punishment. other sections to penal servitude for life, may be sentenced to any term not less than seven years, or to imprisonment not exceeding four years, and offenders liable to fourteen years of penal servitude may be sentenced to any term not less than seven years, or to imprisonment not exceeding three years. § 42 enacts that the Court may add hard labour to imprisonment, and also solitary confinement for the whole, or any part, of the term (2).




to steal from ad

To break into a house for the purpose of stealing, though nothing be taken, is a crime (3), and the rules as to housebreaking as an aggravation of theft apply

Breaking house to it. It is also a crime to break into a building

joining house. with intent to break into and steal from an adjoining building (4). It would even appear that housebreaking with intent to obtain access to and steal from an adjoining house, without its being averred that the second house was to be broken into is a good charge (5).

1 Act 7 Will. IV. and 1 Vict. c. and Kelly in note 2, and *--Alison 36, § 47.

i. 294. 2 In present practice solitary 4 Will. Thompson and others, confinement is always limited to H.C., Mar. 3d 1845 ; 2 Broun 389. periods of not more than a month, Jas. Bell, Glasgow, Spring and pot exceeding a certain number 1830 ; 2 Broun 391 note. of months in each year.

be doubted whether this was a 3 Hume i. 102, cases of Mac- good form of charge, though it queen and Baillie : Campbell : Fer- might be relevant. Such an act gusun: Sutherland : and Brown seems to amount simply to house

It may

Attempt to commit housebreaking" is not a relevant charge (1). But though the thief may have been prevented from entering, if he have actually overcome the security of the building, he is liable to Breaking with punishment. A charge that the accused broke the


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intent to enter and steal.

door of a house with intent to enter and steal, was found relevant (2). But the security must be overcome. Where the case was, that the accused broke a pane of glass and endeavoured to remove the shutter behind it, it was held that, the shutter being still fastened, the security had not been overcome, and that the charge was irrelevant (3).

It has never been decided whether " Shipbreaking with intent to steal," is a relevant charge. In the only case in which it has occurred, the prosecutor withdrew the charge (4). But there seems to be no principle for holding it not to be criminal.

By statute (5) it is made an offence to break into buildings with intent to cut or destroy serge, or other woollen goods in the loom, or velvet, or silk goods or goods containing silk in the loom, or linen or cotton goods, or goods containing linen or cotton in the loom, or apparatus for making any such manufactures.




breaking with intent to steal. For,
if a thief break into a building
which is in juxtaposition to another
building and in open communica-
tion with it, it seems reasonable to
hold the buildings to be in the same
position in a question of house-
breaking, as if they were one house.
The violation of the security of the
one is a violation of the security
of both. In one case a charge
seems to have been sustained where
the housebreaking was libelled as
committed by breaking into "a byre
"immediately adjoining the said
"house, and then passing over a
"bedstead which formed the divi-
"sion between the said house and
"byre." Jas. Hall and Will. Don-

nelly, Glasgow, Jan. 1835; Lord
Justice General Boyle's MSS.

1 Jas. Monteith, H.C., Jan. 22d 1840; 2 Swin. 483 and Bell's Notes 40.-Thos. Sinclair and Jas. M'Lymont, Glasgow, April 21st 1864; 4 Irv. 499 and 36 S. J. 557 (Lord Neaves' opinion).

2 Jas. Monteith supra.-There are also numerous Indictments in the Collection in the Advocates' Library, containing similar charges.

3 Thos. Sinclair and Jas. M'Lymont supra.

4 John Forbes, H.C., July 25th 1845; 2 Broun 461.

5 Act 29 Geo. III. c. 46.

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