REG. V. BALL. 1854. matter of record, as is pointed out by the reporter in a note to the case. Here the indictment alleged, and necessarily alleged, the cause pending, and the entry of a verdict, for without such allegation the indictment would have been demurrable or bad in arrest of judgment. The prosecution must show a binding reference by a judge at Nisi Prius, or by a judge's order. GURNEY, Q. C.-That is not the point. It is said on the other side that the order of reference is sufficient proof of the facts alleged in the indictment. It is not disputed that some evidence must be given, but it is said that the recital in the order of reference is sufficient evidence. It might have been good secondary evidence if notice to produce the record had been given to the defendant; but without that, the general rule must prevail, that the original record or an examined copy must be produced. In answer to questions then put by Gurney, Q. C., to the arbitrator, the latter said that it was impossible for him so to distinguish between the matters in the cause, and the other matters in difference between the parties, as to say definitively to which head the questions put to, and the answers given by the defendant, referred. It was admitted that there was no other evidence on this point. GURNEY, Q. C.-That settles this case. It is not necessary to decide whether the record must be produced, for the prosecution. must fail on another ground. In all these cases, it is necessary to show that the matter alleged to be falsely sworn was material, and that cannot be done in this case without proof that it was material either to the action or to the other matters in difference. The evidence failing to show this distinctly, the defendant must be acquitted. Verdict--Not guilty. COURT OF CRIMINAL APPEAL. April 29, 1854. (Before POLLOCK, C.B., PARKE, B., CRESSWELL, ERLE, and CROMPTON, JJ.) REG. v. THOMAS HARRIS. (a) Embezzlement-Receipt of money by virtue of employment-Use of the master's mill for the private benefit of the servant. H. was the miller of a mill in a county gaol. It was his duty to direct any person bringing grain to be ground at the mill, to obtain at the porter's lodge a ticket specifying the quantity brought. The ticket was his order for receiving the grain, and his duty was to receive the grain with the ticket, grind it, receive the money for the grinding, and account to the governor for the money so received. It was a breach of his duty to receive or grind grain without such ticket; but he had no right to grind any grain at the mill for his private benefit. Having misappropriated money received by him from persons who brought grain to be ground without a ticket, he was indicted for embezzlement : Held, that a conviction could not be sustained, as the reasonable conclusion from the facts was, that he did not receive the money by virtue of his employment, but made an improper use of the mill for his private benefit. Quare, whether he was a servant of the inhabitants of the county within the meaning of the statutes relating to embezzlement? HOMAS HARRIS was tried at the Epiphany Sessions, 1854, TH for the county of Worcester, upon an indictment charging him, as servant to the inhabitants of the county of Worcester, with embezzling three sums of money. There were other counts, in which he was described as servant to the Clerk of the Peace for the county of Worcester, and others. He was found guilty and sentenced to twelve months' imprisonment; but execution was respited until the opinion of Her Majesty's justices and barons could be obtained upon the following CASE. Harris was the miller of a mill in the gaol of the county of Worcester. It was the duty of the prisoner to direct any persons bringing grain to be ground at the mill to obtain, at the porter's lodge at the gaol, a ticket specifying the quantity of grain brought. The ticket was his order for receiving the grain. It was the duty of the prisoner to receive the grain with the ticket, to grind the grain at the mill, to receive the money for the grinding from the person so bringing the grain with the ticket, and to account to the (a) Reported by A. BITTLESTON, Esq., Barrister-at-Law. governor of the gaol for the money so received. The governor accounted for the same to Sir Edmund Lechmere, the treasurer of the county rates. It was a breach of the prisoner's duty to receive or grind grain without such a ticket as above-mentioned; but he had no right to grind any grain at the mill for his private benefit. The prisoner was appointed to his situation by the magistrates of the county of Worcester, myself, and others, at a fixed weekly salary, which was paid to him out of the county rates by the governor of the gaol, who received the money for the purpose from Sir Edmund Lechmere. The moneys which the prisoner misappropriated he received from persons for grinding their grain at the mill; but none of these persons had obtained a ticket as above-mentioned from the porter's lodge, nor had they been directed by the prisoner to obtain such tickets, nor was there, in fact, any ticket at all. The offence, if any, took place entirely in the gaol for the county of Worcester, which is situate within the county of the city of Worcester, more than 500 yards from the county of Worcester. The county of the city of Worcester has a separate jurisdiction, and its own Recorder and Quarter Sessions. It was objected, on the part of the prisoner, that the Court of Quarter Sessions for the county had no jurisdiction to try the case; That the prisoner was not a servant, within the meaning of the embezzlement statutes, to either the inhabitants of the county, or to the Clerk of the Peace and others; That the money he received he did not receive by virtue of his employment, nor for or on account of his masters, so as to constitute the offence of embezzlement. It was agreed that any amendment in the indictment which the The Chairman requested the opinion of the Court of Criminal Selfe was called upon to argue on the part of the Crown. Selfe.-By 4 Geo. 4, c. 64, s. 48, the gaol is made part of the county. The next objection is, that the prisoner was not a servant of the inhabitants within the statute of embezzlement. (Upon this point no judgment was pronounced; but stat. 4 Geo. 4, c. 64, ss. 12, 15; R. v. Callahan, 8 Car. & P. 154; R. v. Jenson, 1 Moo. C. C. 434: R. v. Spencer, R. & R. 299; R. v. Hey, 1 Den. C. C. 602, were referred to.) Thirdly, it was objected that the money was not received by virtue of the employment; because the prisoner neglected another part of his duty, which was to require all those who brought grain to be ground to get a ticket specifying the quantity. [PARKE, B.-The question is, whether the omission to take a ticket was a mere neglect of duty, or whether it indicated an intention to use the mill on his own REG. V. THOMAS 1854. account.] He had no right to grind any corn at all for his own private benefit; and it would be strange if he could exonerate himself from liability for one offence by committing another. CRESSWELL, J.-He could only render his masters responsible by taking a ticket.] The masters would be responsible to all persons bringing corn to be ground at their mill, and could not Embezzlement exempt themselves by a private arrangement between them and Receipt on their servant. Reg. v. Snawley (4 Car. & P. 390) is the only authority which favours the unreasonable supposition that a servant, by violating his master's orders in one respect, may free himself from responsibility for violating them in another; and that was questioned in Reg. v. Aston (2 Čar. & K. 413.) [PARKE, B.-If he was misusing the mill for his private benefit, then he did not receive the money by virtue of his employment.] He could not receive it otherwise than by virtue of his employment. POLLOCK, C.B.-We are all of opinion that this conviction. cannot be supported. The only point on which I am to pronounce the unanimous opinion of the court is this, that, on the facts stated, it appears that the defendant had no right on behalf of his master to grind any corn but that which was brought with a ticket; and that the reasonable conclusion is that, as to all corn ground without a ticket, he intended to make an improper use of the machine, and did use it on those occasions for his private benefit. The money, therefore, was not received on account of his master; and he was not guilty o embezzlement. Conviction quashed. account of master. Case. COURT OF CRIMINAL APPEAL. April 29, 1854. REG. v. CARLISLE AND ANOTHER. (a) Conspiracy to effect lawful object by unlawful means-Procuring abatement of price by false representations. The offence of conspiracy may be committed by conspiring to use unlawful means for the accomplishment of a lawful object; and where A. and B., by false representations made to C., respecting a horse which the latter had sold to A., induced him to accept a smaller sum in satisfaction of the agreed price : Held, that, although C. would not be bound by his agreement to accept the smaller sum, A. and B. were, nevertheless, properly convicted of a conspiracy. THE HE defendants were tried before Cresswell, J., at the last Liverpool Assizes, on the following indictment:-"Lancashire, to wit.--The jurors for our lady the Queen, upon their oath present, that before the time of committing of the offences hereinafter mentioned, to wit, on the 23rd December, 1853, one Thomas Sibson sold to William Brown a certain mare, at and for the price, to wit, of 391., to be paid for the said mare by the said William Brown to the said Thomas Sibson, which said price, at the time of the committing of the offence hereinafter mentioned, was still due and unpaid. And the jurors aforesaid, upon their oath aforesaid, do further present that William Carlisle and the said William Brown, well knowing all and several the premises, but contriving and intending to cheat and defraud the said Thomas Sibson, did, on the day and year aforesaid, unlawfully conspire, combine, confederate, and agree together, by false and fraudulent representations to the said Thomas Sibson that the mare was unsound of her wind, and that she had been examined by a veterinary surgeon, who had pronounced her a roarer, and that he the said William Brown had sold her for 27., to induce and persuade the said Thomas Sibson to accept and receive from the said William Brown a much less sum of money in payment for the said mare than the said William Brown had agreed to pay the said Thomas Sibson for the same, and thereby to cheat and defraud the said Thomas Sibson of a large part, to wit, 127., of the price so agreed by the said William Brown to be paid to the said Thomas Sibson for the said mare, to the great damage of the said Thomas Sibson, and against the peace of our lady the Queen." It was proved, as alleged, that Thomas Sibson had sold a mare to Brown; that Brown stated that he was (a) Reported by A. BITTLESTON, Esq., Barrister-at-Law. |