where new bags were habitually put by C.

C, by concert with

A, claims payment for the bags from B as for bags newly supplied. A is guilty of theft, and C is an accessory before the

fact.

ARTICLE 322.

THEFT BY TAKING AND CARRYING AWAY.

1 Theft may be committed by taking and carrying away without the consent of the owner (even if he expects and affords facilities for the commission of the offence) anything which is not in the possession of the thief at the time when the offence is committed, whether it is in the possession of other person or not.

any

If the thing taken and carried away is on the body or in the immediate presence of the person from whom it is taken, and if the taking is by actual violence intentionally used to overcome or to prevent his resistance, or by threats of injury to his person, property, or reputation, the offence is robbery.

3 If the thing taken and carried away is for the first time rendered capable of being stolen by the act of taking and carrying away, and if the taking and carrying away is one continuous act, such taking and carrying away is not theft (except in the cases provided for in Articles 352, 353 (c), (d), (e), (ƒ), (g), (h) ). It seems that the taking and carrying away are deemed to be continuous if the intention to carry away after a reasonable time exists at the time of the taking.

4

Illustrations.

(1.) A finds lost property, knowing who the owner is, and converts it. This is theft.

1 Cases in Illustrations.

2 Property in no one's possession is said to be constructively in the possession of its owner: the object of this fiction is to satisfy a supposed necessity for showing that the taking in theft must be a taking out of some one's possession.

3 R. v. Townley, 1870, 1 C. C. R. 315.

4 See Article 328 on "Finding."

1

(2.) 1A, a trespasser, finds a dead rabbit lying in a wood, of which he is not the owner, and converts it. This is theft.

(3.) 2 A carpenter finds nine hundred guineas in a bureau lent to him to repair, and converts them. This is theft.

(4.) 3 A finds iron dropped from some canal boat or other, at the bottom of a canal, from which the water has been let off, and converts it. This is theft.

(5.) A instigates B, C's servant, to help A to steal money in C's desk. B tells his master, C. C, in order to detect A, tells B to go on with the business, and so arranges matters as to give A and B opportunities to break open the desk and take the money. This is theft in A.

it.

(6.) 5 A snatches a bundle from B's hand, and runs away with This is theft, and not robbery, as the violence used was only to get possession of the bundle.

(7.) 6 A, at a mock auction, knocks down goods to B, who has not bid for them, pretending that she has. On B's offering to go, A says she shall not be allowed to go unless she pays for the goods knocked down to her, which she does. This is theft at least, and perhaps robbery.

7

(8.) A snatches a sword worn by B. A and B struggle for the sword, and A gets it. This is robbery.

(9.) 8 A, in cutting the string by which a basket is tied, with intent to steal it, accidentally cuts the wrist of the owner, who

1 Blades v. Higgs, 1865, 11 H. L. C. 621.

2 Cartwright v. Green, 1803, 8 Ves. 405.

3 R. v. Rowe, 1859, Bell, C. C. 93. In this case, Pollock, C.B., said the company had "sufficient possession to maintain an indictment for larceny.' The "possession" in question could scarcely be called actual. 4 R. v. Egginton, 1801, 2 East, P. C. 666. This was similarly decided by the Romans, "illud quæsitum est cum Titius servum Mævii sollicitaverit, ut quasdam res domino subriperet et ad eum perferret, et servus eas ad Mævium pertulerit. Mævius autem dum vult Titium in ipso delicto deprehendere permiserit servo quasdam res ad eum perferre, utrum furti an servi corrupti Judicio teneatur Titius an neutro? Et cum nobis super hac dubitatione suggestum est et antiquorum prudentium super hoc altercationes perspeximus quibusdam neque furti, neque servi corrupti actionem præstantibus, quibusdam furti tantummodo: nos hujusmodi calliditati obviam euntes per nostram decisionem sancimus non solum furti actionem sed et servi corrupti contra eum dari.”—Institutes, iv. i. 8.

5 Six cases all to this effect are collected in 2 Russ. Cr. 90.

6 R. v. McGrath, 1869, 1 C. C. R. 205. The case of R. v. Morgan, 1854, D. & P. 395, is somewhat similar; see, too, R. v. Lovell, 1881, 8 Q. B. D. 185, which is to the same effect.

7 Davies' Case, 1712, 2 East, P. C. 709.

8 R. v. Edwards, 1843, 4 Cox, C. C. 32; 2 Russ. Cr. 91.

S

at the same moment tries to seize and keep it. The cut causes the owner to withdraw her hand, and A gets the basket. This is theft, but not robbery, because the actual violence was not intentional.

1

(10.) 1 A, B, and C surround D in such a way as to make resistance by D practically useless, and take his watch, without actual force or threat. This is robbery.

(11.) 2 A mob of seventy persons demands money of a person, threatening, if he refuses, to tear his mow of corn and level his house; he gives it. This is robbery.

(12.) 3 A compels B to give him money, by threatening to accuse A of an infamous crime. This is robbery.

(13.) A rips lead off a church, to the roof of which it is fixed, and carries it away. This is not theft at common law, though it

is by statute.

(14.) 5 A cuts down timber or growing crops and carries them away immediately. This is not theft at common law, though it is by statute.

(15.) 6 A, a poacher, kills a number of rabbits, hides them in a ditch on the ground of the owner of the soil on which they were killed, and returns several hours afterwards and carries them away, having all along intended to do so at his convenience. This is not theft.

Theft may be committed by converting, without the consent of the owner, anything of which the offender has received the custody as the servant of the owner, or in order that the thing may be used by the offender for some special temporary purpose in the presence or under the immediate control of the owner or his servant.

7 When a clerk, or servant, or person employed in the capacity of a clerk or servant, converts anything received by

1 Hughes's Case, 1825, 1 Lewin, 301.

2 Simon's Case, 1773, 2 East, P. C. 731.

3 See cases collected in 2 Russ. Cr. 99-110.

Some distinctions arise

upon this which I do not notice, because this most odious crime is now

dealt with specially by statute. See post, Article 340.

See authorities collected 2 Russ. Cr. 209–10.

5 Ibid.

6 R. v. Townley, 1870, 1 C. C. R. 315.

7 See Chapter XXXVII.

him from another person for his master or employer, he is deemed to have stolen it, but his offence is commonly called embezzlement, and is distinguished from theft for the purposes and in the manner mentioned in Chapter XXXVII.

1

Illustrations.

(1.) A carter converts to his own use a cart which he is driving for his master. He commits theft.

(2.) 2 A is employed by B to take pigs to C to be looked at, and to bring them back to B, whether C wishes to buy them or not. A sells the pigs to some one else, and keeps the money. This is theft.

3

(3.) A sheriff's officer, in possession of goods under a writ of fi. fa., sells part of them. This is theft, as such a person is in

the position of a servant.

(4.) A guest at a tavern carries off a piece of plate set before him to drink from. This is theft, because A had only a permission to use the plate for a special limited purpose.

ARTICLE 324.

THEFT BY A FALSE PRETENCE.

Theft may be committed by fraudulently obtaining from the owner a transfer of the possession of a thing, the owner intending to reserve to himself his property therein, and the offender intending, at the time when the possession is obtained, to convert the thing without the owner's consent to such conversion.5

6

Illustrations.

(1.) A fraudulently persuades B to allow A to take two silver ewers to show to A's master, to choose one if he pleased. A sells the ewers and keeps the money. This is theft.

5 R. v. Hollis, 1883, 12 Q. B. D. 25, a case of "ringing the changes." 6 R. v. Davenport, 1826, 2 Russ. Cr. 147.

1

(2.) A, by pretending to be B, fraudulently obtains B's goods from C, a carrier, to whom they were intrusted by B. This is theft, as the carrier transferred the possession only.

2

(3.) A fraudulently bargains with B for the purchase by A of goods for ready money, and fraudulently induces B to let A have the goods, pretending that he is then about to pay B the price. A then takes away the goods, and does not pay the price. This is theft, as in such cases the purchaser does not mean to transfer the property till the money is paid.

(4.) 3 A fraudulently agrees to sell a horse at a fair to B for £8 down and £15 on delivery; B pays A the £8, which A keeps though he never delivers the horse to B. This is theft in A, as B did not mean to part with his property in the £8 till the horse was delivered to him.

(5.) A fraudulently obtains goods and money from a shopkeeper by pretending to give him diamonds for them. This is not theft, as the shopkeeper means to transfer the property in the goods.

(6.) 5 A fraudulently induces B to give her ten sovereigns to conjure with, promising to bring back the ten sovereigns and 170., to which A says B is entitled. A carries off the ten sovereigns. If the ten sovereigns were to be returned, this is theft. If not, it is not theft, but is obtaining money by false pretences.

(7.) B pays five shillings to A on a fraudulent assurance that A will pay forty shillings to B if a certain horse wins a race; while the race is being run A takes the money away. This is theft whether the horse wins or not.

(8.) A pretends to put three shillings in a purse, and then sells the purse and its contents for one shilling. This is not theft. (9.) A, B's wife, by a forged order gets money standing to

8

1 R. v. Longsheith, 1826, 2 Russ. Cr. 150; 1 Moo. C. C. 137. There are a great number of other cases to the same effect; e.g. R. v. McKale, 1868, 1 C. C. R. 125.

2 Four cases to this effect are stated in 2 Russ. Cr. 157-159.

3 R. v. Russett, 1892, 2 Q. B. 312.

4 R. v. Jackson, 1826, 1 Moo. 119.

goods by false pretences.

5 R. v. Bunce, 1859, 1 F. & F. 523.

The offence would be obtaining

6 R. v. Buckmaster, 1887, 20 Q. B. D. 182.

7 R. v. Solomons, 1890, 62 L. T. N. S. 672; 17 Cox, C. C. 93. The judges said that if any offence was committed it was obtaining money by false pretences, because the prosecutor intended to part with both the property in and the possession of his shilling. It seems doubtful whether A's trick amounts to a false pretence, as it also partakes of the nature of a wager that he can deceive B by his sleight of hand.

8 R. v. Prince, 1868, 1 C. C. R. 150.