COURT OF CRIMINAL APPEAL.

June 4, 1864.

(Before COCKBURN, C.J., WILLIAMS, J., MARTIN, B., CROMPTON, J., and BRAMWELL, B.)

REG. v. BULMER. (a)

False pretences-Larceny-Evidence-24 & 24 Vict. c. 96, s. 88. An indictment for false pretences alleged that the prisoner pretended he was the servant of Mr. Hardman, and was sent to buy a horse for him, whereby the prisoner unlawfully obtained a horse from the prosecutor. The evidence was, that the prisoner represented himself as the servant of Mr. Hardman, but the prosecutor's son, confounding the name with that of Harding, a person whom he knew, said in the prisoner's presence to his father, "I am going to sell the horse to Mr. Harding," whereupon the prisoner adapted his story to meet that belief of the prosecutor and his son, and so obtained the horse. Held, that a conviction could not be sustained, as the pretence by which the horse was obtained was, that the prisoner was the servant of Mr. Harding, and that was not averred in the indictment.

To prevent a prisoner indicted for false pretences from being acquitted on the ground that the offence is that of felony (24 & 25 Vict. c. 96, s. 88) the false pretences laid must be proved, for under the statute he is to be found guilty of the misdemeanor.

CA

ASE reserved for the opinion of this Court by the Recorder of Newcastle-on-Tyne.

The prisoner was tried before me at the last General Quarter Sessions for the town and county of Newcastle-upon-Tyne, on a charge of obtaining a horse by false pretences.

The indictment ran as follows:

to wit.

Newcastle-upon-Tyne) The jurors for our Lady the Queen upon their oath present that George Bulmer on the 30th March, 1864, unlawfully, knowingly and designedly, did falsely pretend to one James Henderson the younger, that the said George Bulmer was the servant of one William Hardman, of Stickley, in the county of Northumberland (the said William Hardman then and long before being

(a) Reported by JOHN THOMPSON, Esq., Barrister-at-Law.

REG.

v.

BULMER.

1864.

well known to the said James Henderson the younger), and that the said George Bulmer was then sent by the said William Hardman to buy a horse for the said William Hardman, by means of which said false pretences the said George Bulmer did then unlawfully obtain from the said James Henderson the younger, a certain horse, with intent thereby False pretences then to defraud, whereas in truth and in fact the said George Bulmer -Proof. was not then the servant of the said William Hardman; and whereas in truth and in fact the said George Bulmer was not then or at any other time sent by the said William Hardman to buy a horse for the said William Hardman, to the great damage and deception of the said James Henderson the younger, to the evil example of all others in the like case offending, against the form of the statute, &c.

The following are the principal fats that were proved in evidence:

James Henderson, of Denton Burn, had a mare for sale at the horse fair in Newcastle, on Wednesday, March 30. The prisoner went up to him and asked if the mare was for sale. "Yes."

"What price?" "127" "Where do you come from?" "Denton Burn." "The same place," said the prisoner, "that my governor is from." "Who is he?" "Mr. Hardman; he lives at Stickley Farm." "What does your master want her for ?" "To drive in a waggonette and ride occasionally."

Henderson knew no person of the name of Hardman, of Stickley Farm, but he had known very well a gentleman named Harding, who had lived some time previously at Benwell Lodge, about ten miles from Stickley.

Henderson and the prisoner then went into the Sun Inn, where Henderson's father joined them. Henderson said to his father, "I am going to sell a horse to Mr. Harding of Benwell Lodge," upon which his father remarked to the prisoner, " He does not live there now." "No," said the prisoner; "he lives now at Stickley Farm." "How long is it since he went there ?" The prisoner turned about, gave a bow of his head and made no answer.

After some bargaining, during which the prisoner expressed his great wish that his master should see the mare, Henderson agreed to take 17. for the loss of the fair, and it was arranged that the prisoner should take the mare home to his master, and meet Henderson next day at the Sun Inn to pay the agreed price, videlicit, 121. The prisoner, according to Henderson, then said, "You must give me a note of the price for my master to see." this Henderson agreed, and he wrote out and signed the following memorandum, which the prisoner dictated:

"To

George Bulmer bought of James Henderson a brown horse for the
sum of 121., to be paid at the Sun Inn at eleven o'clock on March 81.
Denton Burn.
JAMES HENDERSON, Butcher.

The prisoner then paid Henderson 17., and the mare was handed over to him.

Henderson was pressed upon cross-examination as to whether this 17. was not paid on account of the purchase-money; but he

REG.

V.

BULMER.

1864.

False pretences

-Proof.

positively swore that the 17. was paid as the consideration for his giving up the chance of a better price at the fair. In answer to further questions he said, that if the prisoner had met him at the Sun Inn and paid the money next day, it would have been all right; but he added that he would never have parted with the mare at all, or accepted the 17., or signed the memorandum or agreed to meet at the inn, but in the belief that the prisoner was the servant of Mr. Harding, late of Benwell Lodge, and was purchasing the mare for his master.

Mr. Hardman, of Stickley Farm, was called and proved that the prisoner was not his servant, or in any way authorised by him to buy the mare, and that the prisoner lived a mile and a half from his farm.

It was proved that there was no other Hardman or Harding at Stickley, and that Mr. Hardman, of Benwell Lodge, did not reside at or near Stickley Farm.

A few hours later on the same evening, March 30, the prisoner sold the mare in the fair for 67., having first asked 91. for her. She was resold for 81. 12s. 6d. the same night, and next day was offered to Henderson himself by a third owner for 162.

The prisoner never appeared at the Sun Inn, and on Friday, April 1, was taken into custody.

On the warrant being read, which charged him with obtaining a horse by false pretences from J. Henderson, he said, "Is that all?" and afterwards added that he bought the horse, producing the document above mentioned as a voucher for his statement.

At the close of the case for the prosecution, Mr. Blackwell, the counsel for the prisoner, submitted to me:

First, that, looking to the memorandum signed by the prosecutor, to the payment of the 1., and to the admission of the prosecutor that it would have been all right if the prisoner had met him at the inn and paid the money, the evidence showed that the prosecutor had sold the mare to the prisoner, and having taken the risk of parting with her on the understanding that the price should be paid next day, there was no case to go to the jury. He referred to Reg. v. Dale, 7 C. & P. 352.

Secondly, that the evidence did not support the false pretences laid in the indictment, inasmuch as the prosecutor admitted he parted with the mare in the belief that the prisoner was the servant of Mr. Harding, of Benwell Lodge, whereas the pretence proved was that he was the servant of Mr. Hardman, of Stickley Farm, and the inuendo as to the said W. Hardman being very well known to the prosecutor was, in fact, disproved.

I overruled both objections, holding, as to the first, that it was a question for the jury whether the prosecutor would have parted with the mare at all, or agreed to have met at the Sun Inn, if he had not believed that the prisoner was a servant acting for his master in the transaction; and, as to the second objection, holding that, if the jury thought the pretence as to W. Hardman, of Stickley, being the prisoner's master was false, and that it led the

prosecutor to part with his mare even under a misapprehension as to the indentity of the master referred to, they might convict the prisoner under the present indictment.

REG.

v.

BULMER.

1864.

-Proof.

I then called the attention of the prisoner's counsel to the Criminal Law Consolidation Act (24 & 25 Vict. c. 96, s. 88), False pretences "Provided that if upon the trial of any person indicted for such misdemeanor it shall be proved that he obtained the property in question in any such manner as to amount in law to larceny, he shall not by reason thereof be entitled to be acquitted of such misdemeanor.'

Upon this it was submitted that there was not sufficient evidence, had this been an indictment for larceny, to justify a conviction for felony; and, secondly, that though the Act provided that the prisoner "should not be acquitted," the jury would not be justified in returning a general verdict of guilty under this indictment, if they thought the false pretences were not proved as laid.

I held that they might, and that the Act was intended to apply to such a case as the present, and that it was for the jury to say whether the prisoner acted bonâ fide, or whether he had from the first fraudulently designed to deprive the owner of his mare and appropriate her to his own use, for that if the whole proceeding on his part was a trick and contrivance to deprive the owner of his property and possession of the mare, that would be enough to support a conviction for larceny: (Reg v. Shepherd, 9 C. & P. 121.) The learned counsel then addressed the jury on behalf of the prisoner.

In summing up I directed the jury according to the above ruling. The jury after some deliberation found a verdict of guilty, and in answer to a question from me they said they found the prisoner guilty of obtaining the mare by the false pretences laid, and further that, taking my ruling as to the law, they thought the facts amounted to a larceny by the prisoner.

Bail not having been tendered, I sentenced the prisoner to six month's imprisonment with hard labour, which he is now undergoing.

Being requested in the course of the argument to reserve a case for the Court of Criminal Appeal, I consented to do so; and the question for the Court I respectfully submit is, whether the prisoner has been properly convicted?

W. DIGBY SEYMOUR, Recorder.

No counsel was instructed for the prisoner.

Gainsford Bruce for the prosecution.-First, on the facts in this case and the finding of the jury, that this was a larceny, the conviction may be sustained under the 24 & 25 Vict. c. 96, s. 88.

CROMPTON, J.-The enactment does not say that if any larceny is proved he is not to be acquitted of the misdemeanor; but that if you prove the misdemeanor as it is laid in the indictment, the prisoner is not to be acquitted because the case amounts to a larceny.

REG.

".

BULMER.

1864.

False pretences
-Proof.

Bruce.-Secondly, as to the false pretences, it is submitted that, although the prisoner subsequently altered his story to meet the prosecutor's misconception that he was dealing with Mr. Harding's servant, nevertheless he also made the false representation that he was Mr. Hardman's servant, and the jury must be taken to have found that that led the prosecutor to part with the horse; and if so, the conviction may be supported.

COCKBURN, C.J.-There were plenty of false pretences, if rightly charged in the indictment. The false pretence which operated on the prosecutor's mind, and led him to part with his property, must be properly laid and proved. It is plain that the prosecutor confounded the name of Harding with that of Hardman, used by the prisoner, who, seeing that, adapted his story to meet that, and it was the representation that he was Mr. Harding's servant which led the prosecutor to part with his horse. But, unfortunately, the indictment makes the pretence that he was Mr. Hardman's servant the inducing cause of the prosecutor's parting with the horse.

BRAMWELL, B.-On this indictment, if the averments were true, the seller would have a right to look to Mr. Hardman as liable for the price, whereas he intended to sell the horse to Mr. Harding, and to hold him liable.

Bruce.-Supposing the indictment not proved, the prisoner may be convicted of larceny.

MARTIN, B.-No. My brother Crompton has given the true reading of the section.

CROMPTON, J.-The prisoner is to be convicted of the misdemeanor, not of larceny.

WILLIAMS, J.-I feel great difficulty in concurring with the judgment of the Court.

Conviction quashed.