Possession of Carriers, &c.

773

In possession of children] Cloaths and other necessaries provided for children by their parents are often laid to be the property of the parents, especially while the children are of tender age; but it is holden good either way.' East P. C. 654. Cf. Forsgate, Lea. 463, 1787: see note there; Hughes, C. & M. 593, 1842; Green, 1856.

Of carriers] See East P. C. 652. If the alienor hands' a thing 'to a carrier employed by the alienee or by the alienor as agent for the alienee or to a common carrier, the possession is transferred to the carrier (ordinarily) as bailee of the alienee.' W. p. 130. So the property may be laid in the driver of a stage-coach. Deakins, Lea. 862, 1800; East, ib. W. explains this case, p. 139, above. It is submitted that the twelve judges' decision is not a strong authority against .. a servant's custody' founding possession even as against a mere wrong-doer' [cf. his own and other authority to the contrary, above]. They said that as against his employers, the masters, he as mere driver' had only the bare charge of the property,' but as against all the rest of the world... a special property, which supported the indictment. They may have limited this opinion to carriers, but they did not say so.

...

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Of deceased persons] Where a person dies intestate, and the goods of the deceased are stolen before administration granted, the property must be laid as bona episcopi de D. ordinary of the diocese '; but if he dies, leaving a will, and making executors, the property may be laid in them, though they have not proved the will; and it is not necessary that they should show specially their title as ordinary or executor,' because it is of their own possession.' 1 Hale P. C. 514; East P. C. 652. Where the deceased had appointed executors who would not prove the will, it was held, that the property must be laid in the ordinary, and not in a person who, after the commission of the offence, but before the indictment, had taken out letters of administration. G. Smith, 7 C. & P. 147; 7 Cox C. C. 739, 1835.

Indictment for stealing things, the property of the Bishop of P.' An unsuccessful search had been made for a will of the deceased; no administration had been taken out. Some of the articles charged, it was shown, were in the possession of the deceased at her death; but about the majority there was no evidence of this, but on the day of the funeral they were taken by defendant to the house of a witness. The court refused to confine the case to the things shown to have been in possession at the time of the death. On a conviction, it was held that there was sufficient evidence of the intestacy of the deceased, and that the property was in the ordinary, and that the conviction was right; it was quite enough to prove one article was in possession of the deceased at her death. Johnson, D. & B. C. C. 340; 27 L. J. M. C. 52, 1857. But W. p. 128, thinks that since Tharpe v. Stallwood, 5 M. & G. 760, 1843, the law is otherwise settled.

A shroud stolen from the corpse must be laid to be the property of the executors, or whoever else buried the deceased, and not of the deceased himself." A coffin may be laid to be the goods of the executors. But if it do not readily appear who is the personal representative of the deceased, laying it to be the goods of a person unknown is sufficient." East P. O. 652. A knife was stolen from the pocket of A. as he lay dead on the road in the diocese of W. A.'s last place of abode was at T. in another diocese, but Patteson J., the jury finding the theft took place after death, held, that the

knife was of the property of the Bishop of W. Tippin, C. & M. 545, 1842.

Of goods in a church] See Wortley, 1 Den. C. C. 162, 1846.

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Of lodgers] Where furniture is let to a lodger (for a term certain or determinable upon any occurrence which does not depend on the will of the bailor': W. p. 16), he has the sole right to the posses sion, and if the goods are stolen, the property must be laid in the lodger. Belstead, R. & R. 411, 1820; Brunswick, 1 Moo. C. C. 26, 1824.

Of persons unknown] Felony may be committed in stealing goods, though the owner is not known, and they may be described in the indictment as the goods of a person to the jurors unknown.' 1 Hale P. C. 512; East P. O. 651. But if the owner be really known, an indictment alleging the goods to be the property of a person unknown would be improper.' Deakins, East, ib. See R. 7 of Indictments A.

"In prosecutions for stealing the goods of a person unknown, some proof must be given sufficient to raise a reasonable presumption that the taking was felonious, or invito domino; for it is not enough that the prisoner is unable to give a good account how he came by the goods.' 2 Hale P. C. 290; East, ib., and 657.

Of trustees of turnpikes, &c.] By 7 G. 4, 64, 17: 'In any indictment or information for any felony or misdemeanor committed on or with respect to any house, building, gate, machine, lamp, board, stone, post, fence, or other thing erected or provided in pursuance of any Act of parliament for making any turnpike road, or any of the conveniences or appurtenances thereunto respectively belonging, or any materials, tools, or implements provided for making, altering, or repairing any such road, it shall be sufficient to state any such property to belong to the trustees or commissioners of such road, and it shall not be necessary to specify the names of any such trustees or commissioners.'

Goods of corporations] See R. 6 (2) of the Indictments A.

Verdicts possible on indictments] See L. A. s. 44 (2), (3), (4).

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Sentence] By s. 37: (1) Every person who commits the offence of simple larceny after having been previously convicted of felony shall be liable to penal servitude for any term not exceeding ten years. (2) Every person who commits the offence of simple larceny or any offence made punishable like simple larceny after having been previously convicted-(a) of any indictable misdemeanour under this Act; or (b) twice summarily of any offence punishable under s. 6 of the Summary Jurisdiction (Ireland) A. 1851, or under the Larceny A. 1861, or under the Malicious Damage A. 1861, or under this A. (whether each of the convictions has been in respect of an offence of the same description or not and whether such convictions or either of them have been before or after the passing of this A.); shall be liable to penal servitude for seven years maximum.

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By (3), a male under sixteen may also be once [see (6), below] privately whipped.' By (4), where penal servitude may be imposed for an offence under this A., a sentence of two years' imprisonment

with hard labour--as a maximum-may be substituted. By (5) (a) for a misdemeanour under this A. a fine may be substituted for or added to any other sentence; by (b) for felony, defendant's recognisances, with or without sureties, to keep the peace, &c. may also be ordered; (c) so for misdemeanour-in which they may be substituted for any other punishment; (d) 'Provided that a person shall not be imprisoned for more than one year for not finding sureties.' (6) regulates the severity of the whipping: (a) age not exceeding 16, maximum, 25 strokes with a 'birch-rod'; (b) in any other case the maximum is 50 strokes; (c) the court must specify the number and the instrument in each case; (d) no whipping may take place after six months from the passing of sentence; (e) if inflicted with penal servitude the whipping must be done before prisoner is removed to a convict prison.

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Venue] See s. 39 of the Larceny A. 1916-sub-s. (1) under False Pretences, and sub-ss. (2) and (3) under Venue. Note that sub-s. (1) deals with any offence against this Act.' See also s. 115 of 24-5 V. 96. Where goods stolen in one county were carried by the offender into others, he might be indicted in any of them, for the continuance of the asportation is a new caption,' i.e. the offence is complete' in all: but if he be indicted of robbery, it must be in the county where the force and putting in fear was.' 1 Hale P. C. 507-8; 4 Bl. Com. 305; 1 Moo. C. C. 47, n.; Hawk. P. C. 1, 33 (pt. 1), 52. Thus there was a conviction in Durham where property was stolen on the 4th November, 1823, in Yorkshire, and carried into Durham on the 17th March, 1824. Parkin, 1824. This rule did not, however, hold with regard to compound larcenies, in which case there could only be trial for the 'simple' larceny (which see, above) in the second county. Thus, where defendant robbed the mail of a letter, either in Wiltshire or Berkshire, and brought it into Middlesex, and was there indicted, the judges held, that he could not be convicted capitally out of the county in which the letter was taken from the mail. Thomson, 2 Russ. Cri. 1304, 1795, the felony travels,' i.e. but not the aggravation. So if A. rob B. in county C., and carries the goods into county D., A. cannot be indicted of robbery in the county of D. . . but he may be indicted of larceny' there because it is theft wherever he carries the goods. . . 4 H. 7, 5 b; 7 Co. Rep. [49] 2 a: Bulwer's case' [1584]. Hale 2 P. O. 163, and above. Where the theft from the person was at Swindon (Wilts.), Jelf J. held he had no jurisdiction to try in the city of Gloucester (where the arrest was) and that the jury could not find 'simple' on the indictment for compound larceny. Fenley and others, 20 Cox C. C. 252, 1903.

'If the thing stolen is altered in character in the first county, so as to be no longer what it was when stolen, an indictment in the second should describe it according to its altered, and not according to its original, state,' because the larceny continued in the second county may to some extent be considered as a new offence. 2 Russ. Cri. 1304; see Edwards, 1823. Thus an indictment in county H., for stealing one brass furnace,' is not supported by evidence that it was stolen in county R., and there broken to pieces, and the pieces brought into county H. Halloway, 1 C. & P. 127, 1823.

A joint original larceny in one county may become a separate larceny in another. Thus where four men (probably) stole goods in Gloucestershire, divided them there, and then carried their shares into Worcestershire in separate bags, it was ruled that the joint indictment against

all of them could not be sustained as for a joint larceny in Worcestershire; and counsel was put to his election which of them he would proceed against separately. Barnett, 2 Russ. Cri. 1305, 1818. Cf. Prince, 1868. But where a larceny was committed by two, and one of them carried the stolen goods into another county, the other still accompanying him, without their ever having been separated, they were held both indictable in either county, the possession of one being the possession of both in each county, as long as they continue in company. M'Donagh, Car. Suppl. 23, 3rd ed., 1824.

A man may be indicted for larceny in the county into which the goods are carried, although he did not himself carry them thither. C. and D., laid a plan to get some coats in Surrey under pretence of buying them. They got the owner to leave them with D. while she went with C. to get the money for them. In her absence D. carried them into Middlesex, and C. afterwards joined him there, and concurred in securing them. They were indicted in Middlesex, and the judges were unanimous that as C. was present aiding, &c. in Surrey at the original larceny, his concurrence afterwards in Middlesex, though after an interval, might be connected with the original taking, and brought down his larceny to the subsequent possession in Middlesex. County, 2 Russ. Cri. 1305, 1816.

Defendant was tried in Kent for stealing two geldings in that county. The horses were stolen in Sussex. He was apprehended with them in Surrey. The only evidence to support the charge of stealing in Kent was, that when he was apprehended he made excuses that the horses belonged to his brother in Kent, and being conveyed thither with an officer on the horses, he made his escape thence, without the horses. The judges were unanimous that there was no evidence of stealing in Kent, and that no judgment ought to be given on the conviction, but that he should be removed to Surrey. Simmonds, 1 Moo. C. C. 408, 1834. Indictment in Middlesex, at common law, for stealing lead from the roof of a church in Bucks. Defendant being indicted at the Central Criminal Court, which had jurisdiction in Middlesex (where the lead was found in his possession), and not in Bucks, the court held that he could not be convicted there, on the ground that the original taking not being a larceny [at common law], but created by statute a felony, the subsequent possession could not be considered a larceny.' Millar, 7 C. & P. 665, 1837.

R. and B. were indicted at the Middlesex sessions for stealing and receiving a watch; B. pleaded guilty, R. was convicted of stealing. The watch was stolen at Liverpool, and was delivered by railway to B. in Middlesex. R. had by letter advised B. of this, but it was not proved that he had left Liverpool. It was held under (now) 6-7 G. 5, 50, 39 (2), that R. was still constructively in possession of it in Middlesex, and, therefore, triable there. Rogers, L. R. 1 C. C. R. 136; 37 L. J. M. C. 83; 11 Cox C. C. 38, 1868.

If the original taking was not such a felony whereof the common law takes cognisance,' as if the goods be stolen at sea, e.g. by a pirate carrying the goods. . .' into any county: Hawk. P. C. I. 33, 52, the thief cannot be indicted (at common law) for larceny in that county, citing 3 Inst. 113; Millar, above; but 24-5 V. 96, 115. provides for that case.

And so where the goods are stolen abroad, though within the King's dominions (as in Guernsey), carrying them to England will not render the offender indictable here. Prowes, 1 Moo. C. C. 349, 1832; Debruiel,

11 Cox C. C. 207, 1861. So where the goods are stolen in France. Madge, 9 C. & P. 29, 1839, because at common law stealing abroad is not a crime: Debruiel. Cf. Garrett, 1853.

Things not subject to larceny] See under Animals, Dead Bodies.

Corpses] There can be no property in a dead corpse,' and though a very high misdemeanour,' the stealing of it is no felony: East P. C. 652.

Land and air are physically incapable of being stolen, as is practically free water.

Triable at Q. S. (except as stated under Written Instruments).

LETTERS, LARCENY OF, &c.

See Post-Office. For forgery, see Howse and Cade and cf. Riley, 1896; for threatening letters, see under Threats.

LEVYING WAR.

See Treason.