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REG.

v.

RUNDLE.

1855.

Ill-treatment of

PARKE, B.-Sect. 68 imposes no penalty; it only provides that proper care shall be taken of lunatics who are neglected by their relations; and in that section, the word "relative" is used; but it is not in sect. 9.

CROWDER, J.-You read sect. 68 as if it were "relative having Care the care or charge, or other person, whether relative or not, or charge." having the care or charge."

lunatic

Stock.-Yes; and that gives an explanation of the general words in sect. 9, "any person having the care or charge."

COLERIDGE, J.-Sect. 68 seems not to apply at all to cases of authoritative charge.

Stock. So the latter part of sect. 9. It is the first part of sect. 9 which relates to cases of authoritative charge. Sect. 68 refers to the form, Schedule F., No. 1-and in that form the word relative is left out-showing that the Legislature considered the case of a relative included under the words "persons having the care or charge of him," which are found in the form.

COLERIDGE, J. Then, according to your construction of sect. 68, it would not apply to the case of a lunatic residing with his father and ill-used by his brother, because the brother would not in that case have the care or charge of him.

Stock.-Both would probably be considered as having the care or charge.

CROWDER, J.-Here, however, the care and charge are wholly independent of the lunacy. The wife happens to be lunatic; but the care and charge does not arise from that.

POLLOCK, C. B.-We are all of opinion that so much of this conviction as relates to the question of the wife's lunacy and the punishment contingent thereon cannot be sustained. For myself I give this reason only, that, upon reading sect. 9 of this act of Parliament, and comparing it with the former act and with c. 97 of the same session, it seems to me that it was not intended to interfere with care and charge arising out of relations of a purely domestic nature, and to superadd to the ordinary obligations under which any master of a family lies as a father, husband, guardian or other relative, the weight and authority of an act of Parliament imposing penalties beyond those which the ordinary law of the land would impose. A person in the relation of husband, father or guardian, who ill-uses those under his control, is liable to be punished by the ordinary law; but I think that this enactment does not apply to a care and charge arising from the ordinary domestic relations of life, because the person ill-treated happens to be lunatic, and where she would be under the care and charge of the person accused, even if not lunatic. Although it has been ingeniously argued, that the provision in the earlier part of sect. 9 of c. 96 exhausts all other classes and leaves the latter words applicable only to relatives; and that this construction is supported by the words used in sect. 68 of c. 97, I cannot accede to that argument; for, first, all other classes are not exhausted by the earlier words; because there are no doubt many persons casually em

And,

REG.

v.

RUNDLE.

1855.

ployed in taking care of lunatics, when they are brought up for examination or otherwise, who would not come under the earlier words, but are included in the latter words of the section. secondly, the argument itself has not the same weight when applied to an act of Parliament as it would have if applied to other Ill-treatment of documents, the precise wording of which is more carefully con- lunatic-“ Care sidered. For these reasons I have come to the conclusion that or charge." the section was not intended to apply to a mere domestic

custody.

PARKE, B.-I am of the same opinion. I entirely concur with the Lord Chief Baron that this section only applies to such persons as have the charge and care of lunatics otherwise than by reason of natural duty, and does not extend to the case of a husband with respect to his wife, or to a parent with respect to his child. Persons standing in that relation to a lunatic cannot be considered as having the care and charge of him in the same sense in which those words are applied to other persons in this section; and though sect. 68 of c. 97 uses the word "relative" in conjunction with the words "having care or charge," it does not extend the operation of sect. 9; nor, indeed, impose any punishment for the neglect of the relative, but only provides for the proper treatment of the patient.

COLERIDGE, J., CROMPTON, J., and CROWDER, J., concurred.
Conviction quashed, except as to one count.

COURT OF CRIMINAL APPEAL.

June 2, 1855.

(Before CAMPBELL, C.J., ALDERSON, B., ERLE, J., PLATT, B., and CROWDER, J.)

REG. v. THOMAS SMITH. (a)

Felonious receipt of stolen goods-Evidence-Property in the manual possession of another person under the control of prisoner. Upon the trial of an indictment for feloniously receiving a stolen watch, it was proved that the prisoner, who had been present at the time when the watch was stolen, afterwards went to the prosecutor, and offered to get it back for him. The prosecutor agreed to pay a sum of money, and sent a woman with the prisoner to fetch the watch. They went to a room, where was another man, who placed the watch upon the table; and the prisoner directed the woman to take it to the prosecutor, which she did.

The jury were directed, that if they believed that the prisoner knew the watch to have been stolen, and also believed that it was in the custody of another person with the cognizance of the prisoner, that person being one over whom the prisoner had absolute control, so that the watch would be forthcoming if he ordered it, there was ample evidence to justify them in convicting the prisoner.

The jury found a verdict of guilty, stating their belief, that though the watch was in the hands of another, it was in the prisoner's absolute

control.

Held, that the direction was right, and the conviction warranted by the evidence, although the same evidence would also have warranted a conviction for larceny.

THE following case was reserved by the Recorder of Brigh

ton:

At the Quarter Sessions of the peace for the borough of Brighton, holden &c., on the 8th day of May, 1855, the prisoner Thomas Smith was indicted for feloniously receiving a stolen watch, the property of John Nelson, knowing the same to have been stolen. It was proved that John Nelson, the prosecutor, between eleven and twelve o'clock at night of the 12th of April in this year, was

(a) Reported by A. BITTLESTON, Esq., Barrister-at-Law.

in a public-house called the Globe, in Edward-street, in the said borough. He was in company with a prostitute, named Charlotte Duncan, who lodged in a room of a house, No. 17, Thomas-street, Brighton, which belonged to the prisoner, of whom she rented the

room.

The prisoner and five or six other persons were present in the apartment in the Globe Inn when the prosecutor and Charlotte Duncan entered. While the prosecutor was drinking in the Globe, his watch, being the watch named in the indictment, was taken from his person by some one who forced open the ring which secured the watch to a guard. The prosecutor heard the click of the ring and immediately missed his watch and taxed the prisoner as the thief. A policeman was sent for and a partial search was made, but the watch was not found. The prisoner was present all that time. Soon after the loss of the watch, the prosecutor and the girl Charlotte Duncan went together to Charlotte Duncan's room in Thomas-street. After they had been there together little more than an hour, the prisoner came into the room where they were, and said to the prosecutor "Was not you in the Globe, and did not you lose your watch?" The prosecutor said "Yes." The prisoner then said, "What would you give to have your watch back again?" Prosecutor said "I'd give a sovereign.' Prisoner then said "Well, then, let the young woman come along with me and I will get you the watch back again." Charlotte Duncan and the prisoner then went together to a house close by, in which the prisoner himself lived. They went together into a room in which Hollands was. This was nearly one o'clock; there was a table in the room. On first going in Charlotte Duncan saw there

was no watch on the table: but a few minutes afterwards she saw the watch there. The prisoner was close to the table. She did not see it placed there, but she stated it must have been placed there by Hollands, as if the prisoner to whom she was talking had placed it there she must have observed it. The prisoner told Charlotte Duncan to take the watch and go and get the sovereign. She took it to the room in 17, Thomas-street, to the prosecutor, and in a few minutes the prisoner and Hollands came to that room. Hollands asked for the reward. The prosecutor gave Hollands 2s. 6d., and said he believed the watch was stolen, and told him to be off. Hollands and the prisoner then left. The prisoner did not then say anything, nor did the witnesses see him receive any money. Hollands absconded before the trial.

The recorder told the jury that if they believed that when the prisoner went into the room, 17, Thomas-street, and spoke to the prosecutor about the return of the watch, and took the girl Duncan with him to the house where the watch was given up, the prisoner knew that the watch was stolen: and if the jury believed that the watch was then in the custody of a person with the cognizance of the prisoner, that person being one over whom the prisoner had absolute control, so that the watch would be forthcoming if the prisoner ordered it, there was ample evidence to

REG.

v.

SMITH.

1855.

Felonious receiptEvidence.

REG.

v.

SMITH.

1855.

Felonious receiptEvidence.

justify them in convicting the prisoner for feloniously receiving the watch.

The jury found the prisoner guilty; and, in answer to a question from the recorder, stated that they believed that, though the watch was in Hollands' hand or pocket, it was in the prisoner's absolute control. Sentence was passed on prisoner, but was respited until the opinion of the court could be taken.

The question for the opinion of the court is whether the conviction of the prisoner is proper.

Creasy, for the prisoner. The direction of the recorder was wrong and the conviction wrong. There was no sufficient proof of a possession by the prisoner; or, if Hollands' possession is to be treated as the prisoner's, then there is no proof that the watch was stolen by some other person. The direction would mislead the jury; because, if the transaction at the Globe Inn is relied upon as showing concert between the prisoner and Hollands, then the evidence shows a stealing by them and not a receiving. The prosecution, in order to make out the charge of receiving, were bound to lay before the jury evidence that the stealing was by some other person: (2 Russell on Crimes (ed. Greaves) 247, citing R v. Densley, 6 Car. & P. 399, per Patteson, J.)

PLATT, B.-Was not the prisoner also indicted for stealing the watch?

Creasy.-Yes; but he was acquitted of that charge the day before he was tried for receiving. That circumstance, however, ought not to prejudice his case; and it is submitted that no act of receiving is proved against him. If Hollands was the thief, the stolen property continued in his possession throughout; and according to the decision of the majority of the judges in R. v. Wiley, 20 L. J. 4, M. C.; 2 Den. C. C. 37, neither the circumstance that the property was in the prisoner's house nor the expressions which he used, would afford any sufficient evidence of a possession by him. (He referred to the judgments of Alderson B., Platt, B., and Patteson, J., in R. v. Wiley.) The possession of the girl was as agent for the prosecutor, not for the prisoner.

LORD CAMPBELL, C. J.-Do you say that there cannot be any case of joint possession by thief and receiver? I think all the judges in R. v. Wiley agreed that there might.

ALDERSON, B.-In that case the jury were not properly directed; but here the very distinction taken in that case has been explained to the jury.

Creasy. But there is no evidence here of any such possession by the prisoner, as the judges held to be necessary.

PLATT, B.-The prisoner claims dominion over the watch. ERLE, J.-" Possession" is one of the most vague of all vague terms, and shifts its meaning according to the subject-matter to which it is applied,-varying very much in its sense, as it is introduced either into civil or into criminal proceedings. But what principle, do you say, is to be extracted from R. v. Wiley?

Creasy. This at least-that mere companionship with the

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