WRECK, OFFENCES RELATING TO.

See Ships and in Index.

At common law, he who takes away treasure-trove or . . a wreck, waif or stray, before they have been seized by the persons who have a right thereto, is not guilty of felony': Hawk. P. C. I. 33, 38.

WRITTEN, &c. INSTRUMENTS, LARCENY, &c. OF.

Valuable securities] By 24-5 V. 96, 27: Whosoever shall for any fraudulent purpose destroy, cancel, or obliterate the whole or any part of any valuable security, other than a document of title to lands, shall be guilty of felony, of the same nature and in the same degree and punishable in the same manner as if he had stolen any chattel of like value with the share, interest, or deposit to which the security so stolen may relate, or with the money due on the security so stolen, or secured thereby and remaining unsatisfied, or with the value of the goods or other valuable thing represented, mentioned, or referred to in or by the security.'

Real property deeds] By s. 28: 'Whosoever shall for any fraudulent purpose destroy, cancel, obliterate, or conceal the whole or any part of any document of title to lands shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude' for three years.

For proviso see s. 29. Larceny is punishable by s. 7 (1) of the Larceny A. 1916, by five years' p. s.

6

Wills] By s. 29: Whosoever shall, either during the life of the testator or after his death, for any fraudulent purpose destroy, cancel, obliterate, or conceal the whole or any part of any will, codicil, or other testamentary instrument, whether the same shall relate to real or personal estate, or to both, shall be guilty of felony, and being convicted thereof, shall be liable to penal servitude for life.' Then follows a proviso that neither this nor s. 28 is to affect any other 'remedy.'

Evidence-disclosure] The s. concludes: 'but no conviction of any such offender shall be received in evidence in any action at law or suit in equity against him; and no person shall be liable to be convicted of any of the felonies in this and the last preceding section mentioned by any evidence whatever in respect of any act done by him, if he shall at any time previously to his being charged with such offence have first disclosed such act on oath in consequence of any compulsory process of any court of law or equity in any action, suit, or proceeding which shall have been bonâ fide instituted by any party,

aggrieved, or if he shall have first disclosed the same in any compulsory examination, or deposition before any court upon the hearing of any matter in bankruptcy or insolvency.

By s. 6 of the Larceny A. 1916: Every person who steals any will, codicil or other testamentary instrument either of a dead or of a living person shall be guilty of felony and on conviction thereof liable to penal servitude for life.'

6

Records, &c.] By s. 30 of 24-5 V. 96: Whosoever shall for any fraudulent purpose take from its place of deposit for the time being, or from any person having the lawful custody thereof, or shall unlawfully and maliciously cancel, obliterate, injure, or destroy the whole or any part of any record, writ, return, panel, process, interrogatory, deposition, affidavit, rule, order, or warrant of attorney, or of any original document whatsoever of or belonging to any court of record, or relating to any matter, civil or criminal, begun, depending, or terminated in any such court, or of any bill, petition, answer, interrogatory, deposition, affidavit, order, or decree, or of any original document whatsoever of or belonging to any court of equity, or relating to any cause or matter begun, depending, or terminated in any such court, or of any original document in anywise relating to the business of any office or employment under her Majesty, and being or remaining in any office appertaining to any court of justice, or in any of her Majesty's castles, palaces, or houses, or in any government or public office, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for the term of three years; and it shall not in any indictment for such offence be necessary to allege that the article in respect of which the offence is committed is the property of any person."

Larceny of these documents (omitting bill' and answer') is punishable by s. 7 (2), (3) of the Larceny A. 1916, with five years' p. s..

What instruments are within the statute] At common law, larceny could not be committed of 'chattels real, and therefore not of a box or chest of charters that concern land': Wody's case, 9 B. (49 H. 6 or) 10 E. 4, p. 14, pl. 9, 1470-1; and the box or chest, though it be of great value, yet shall it be of the same nature the charters be of: et omne majus dignum trahit ad se minus.' 3 Inst. 109; 1 Hale P. C. 510. See below and cf. Fixtures. Thus it was held that stealing a commission, directed to commissioners to ascertain boundaries, was not a felony, the commission concerning the realty. Westbeer, Lea. 12; East P. C. 596; 2 Str. 1134, 1739: a modern extension to records concerning the land, though not of title': Wright on Possession, p. 233, who adds: Quære, whether the rule extends to heirlooms or to copies or counterparts.' But the parchment on which the records of a court of justice are inscribed, if it do not relate to the realty, may be the subject of larceny. Walker, 1827, distinguished from Westbeer.

Choses in action] Bonds, bills, and notes, which concern mere choses in action, were also at common law held not to be such goods whereof larceny might be committed; being of no intrinsic value, and not importing any property in possession of the person from whom they are taken.' 4 Bl. Com. 234; East P. C. 597. Mortgage deeds, being subsisting securities for the payment of money, are 'choses in action,' and not goods and chattels.' Where, therefore, defendant was indicted for stealing 'goods and chattels' in a house, and the

Paper: Stamps: Goods and Chattels,'

1095

jury found that his intent was to steal mortgage deeds only, c. q. Powell, 1852: it was unnecessary to decide whether the deeds savoured of the realty, &c., because being subsisting securities for the payment of money they are clearly choses in action.' A policy of assurance is a chose in action. Ex p. Ibbetson, In re Moore, 8 Ch. D. 519, 1878: C. A.

Paper-Stamps] The value of documents as paper or stamps was held to be merged in their evidentiary character.' But this rule is subject even at common law to the limitation that if the document is so intrinsically imperfect as to be inoperative, it is not a chose in action, but is remitted to its material character as a mere paper, parchment or stamp,' and may be stolen. Wright on Possession, p. 233. See Choses in Action under Larceny.

A pawnbroker's duplicate ticket is a warrant for the delivery of goods' or a thing valuable in itself, for which there may be a conviction of stealing. Morrison, 1 Bell C. C. 158; 28 L. J. M. C. 210; 8 Cox C. C. 194; 5 Jur. N. S. 604, 1859. It may be so described or as a pawnbroker's ticket' or as a piece of paper.' A railway ticket, if taken to defraud the company, may be the subject of larceny. Beecham, 5 Cox C. C. 181, 1851, where one count charged stealing three pieces of pasteboard, value one penny.

6

Several counts charged stealing a number of promissory notes, and others stealing so many pieces of paper, stamped, &c. The notes consisted of country bank-notes, which, after being paid in London, were sent down to the country to be re-issued, with the same stamps, and were stolen on the road. It was objected that these were no longer promissory notes, the sums of money mentioned in them having been paid, and that depriving the bankers of the privilege of re-issuing them which they possessed, could not be considered as larceny. The judges, however, held that the conviction on the counts for stealing the paper and stamps was good, the paper and stamps, particularly_the latter,' being valuable to the owners. Clark, R. & R. 181, 1810. In a similar case, defendant having been convicted on different counts of stealing valuable securities called promissory notes, and also of stealing so many pieces of paper stamped, &c., the judges held the conviction right. Some of them doubted whether the notes could properly be called 'valuable securities': but if not, they all thought they were goods and chattels. Vysa, 1 Moo. C. C. 218, 1829. In Vyse,' said Jervis C.J. in Powell, 1852, at 410, the notes had been paid, and though re-issuable, were not at the time of the larceny securities for the payment of money. The paper and stamp on which they were written were, therefore, properly described as goods and chattels.' If the halves of promissory notes are stolen, they could be described as goods and chattels. Mead, 4 C. & P. 535, 1831.

Imperfect instruments] 'In order that the statutes' which have excepted specified instruments from the common law shall apply, the instrument must be so far complete and operative as to satisfy the statutory denomination . . . alleged . . .': Wright, p. 234, who points out that in some of the following cases there was no count at common law. A., in answer to an advertisement, asked defendant to raise 5001. for him. The latter promised to do so at 6 per cent., and produced ten blank 68. stamps, and procured A. to write across each of them, 'Payable at Messrs. Praed & Co., 189, Fleet Street, London'; A. did not sign his name. Defendant said nothing more, but the

papers were filled up as bills of exchange for 500l. each, and put into circulation. It was held by three judges that these stamped papers were neither bills of exchange,' nor orders for the payment of money,' nor securities for money'; and that larceny of the paper and the stamps could not be sustained, they not being the property of A., nor ever (probably) in his possession. Minter Hart, 6 C. & P. 106, 1833; see also Phipoe. Where defendants were indicted under a rpd. s. for having by blackmailing threats induced prosecutor to sign the following dated document, 'I hereby agree to pay you 1007. on the 27th inst. to prevent any action against me,' it was held that, although not negotiable, yet it was a valuable security, because, if the transaction had been genuine, it would have been a valid agreement on which prosecutor might have been sued. John and wife, 13 Cox C. C. 100, 1875.

A cheque on a banker, not stamped, has been held not to be a bill or draft, within the rpd. A., being of no value, nor in any way available. Pooley; Yates, 1827. But where defendant was indicted in one count for stealing a cheque, and in another, a piece of paper, he having converted to his own use a cheque belonging to his employers, which was possibly void as a cheque under the then law, it was held that even if the cheque was void, he was properly convicted for stealing a piece of paper. Perry, 1 Den. C. C. 69; 1 C. & K. 725; 1 Cox C. C. 222, 1845. See Walsh, 1812, and Metcalf, 1835; also Heath, 1838.

An indictment under s. 27, above, must particularise the kind of valuable security stolen, and any material variance, if not amended, will be fatal. Lowrie, L. R. 1 C. C. R. 61; 36 L. J. M. C. 24; 15 L. T. 632; 10 Cox C. C. 388, 1867, where the document was an agreement by defendant that another should receive money due to defendant at some future time; an equitable assignment of money when it became due': per Blackburn J.

Notice to produce] See that title and Hunter, 1829.

Fraudulent purpose'] Warrants of execution, process of a court of record,' had issued against defendant, and were in the hands of the bailiff, who remained in possession. Defendant forcibly took the warrants out of his hands and kept them. He then forcibly turned the bailiff out, believing that his authority was gone. It was held he was not guilty of larceny, but of taking with a fraudulent purpose' under s. 30; for he had acted as he did in order to deprive the bailiff, as he thought, of his authority, and that was in fraud of the execution creditor and in fraud of the law, and constituted a fraudulent purpose,' but it was not animo furandi nor lucri causa: per Cockburn C.J. Bailey, L. R. 1 C. C. R. 347; 41 L. J. M. C. 61; 12 Cox C. C. 129, 1872.

Concealment] See that title.

PART III.

GENERAL MATTERS OF DEFENCE

OR

IRRESPONSIBILITY FOR CRIME.

For Infancy, see under Children.

1. MENTAL UNSOUNDNESS.

It is for the defence to prove insanity, not for the prosecution to prove sanity': De Vere, 2 Cr. A. R. 20, 1909; J. W. Smith, 1910. So Ireland, 4 Cr. A. R. 87, 1910: wounding with intent to cause grievous bodily harm, where defendant did not set up this defence; cf. Coleman, 1911; Abramovitch, 1912; and Coelho, 1914. See p. 283.

Procedure] See Defence, Part I. Either the Crown or the defence and, of course, the judge (at common law: Burton, 1863, reporter's note) may call evidence of defendant's mental condition; in Machardy, 1911, 2 K. B. 1144; 80 L. J. K. B. 1215; 76 J. P. 6; 28 T. L. R. 2; 22 Cox C. C. 614; 105 L. T. 556; 55 S. J. 754; 6 Cr. A. R. 272: arson, insanity was not set up, and though the judge directed the jury against it, they found it; the five judges held that there was no appeal merely against the finding of insanity (nor on a case stated, H. Taylor, 11 Cr. A. R. 198, 1915) and stated their opinion that here there was no evidence of insanity and that the proper verdict would have been guilty..

Authorities] The defence of insanity is one involving great difficulties of various kinds, and the rules which have occasionally been laid down by the judges with regard to the nature and degree of aberration of mind which will excuse a person from punishment are by no means consistent with each other, or, as it should seem, with correct principle.' This passage appeared in the first edition of this work in 1835, and so before M'Naughten's case (and in the 7th, by Stephen J., and other edns. after that case), which has certainly led to greater, if not total, uniformity in the views of the judges. Some advance has undoubtedly been made owing to the progress of science. The standing difficulty is the absence of high authority at once medical and legal. Of late years the accumulated result of a careful observation of insane patients in various countries has thrown clearer light upon the mental processes of the insane, and has brought back medical opinion into closer accord with the views of lawyers,' says the latest writer on the subject, Prof. Kenny, Outlines of Crim. Law, ch. 4, 1917.