REG. v. CARTER. 1884. be taken as stated. If the evidence was wrongly admitted, and the jury acquitted on the only count in support of which the evidence would be received, then à fortiori the conviction ought to be quashed on the first count, because its reception must have tended to prejudice the prisoner, and ought not to have been Receiving received at all.] stolen property -Guilty know ledge. Lord COLERIDGE, C.J.-I am of opinion that the evidence was wrongly received. The ruling of Lord Bramwell in Reg. v. Drage seems directly in point, and to be quite right. With regard to the argument on behalf of the Crown that Reg. v. Drage is inconsistent with the opinion of Sir Henry Keating in Reg. v. Harwood, it is to be observed that the learned judge in the latter case merely said that in the event of a conviction he would reserve the question. I am of opinion Reg. v. Drage was a perfectly correct decision, and that this conviction must therefore be quashed. HAWKINS, STEPHEN, WATKIN WILLIAMS, and MATHEW, JJ. concurred. Conviction quashed. Solicitors for prosecution, Haynes and Clifton, Romford, Essex. Solicitor for the prisoner, John W. Atkinson, Stratford. (Before Lord COLERIDGE, C.J., GROVE, FIELD, STEPHEN, and SMITH, JJ.) REG. v. DE BANKS. (a) Embezzlement-Larceny-Sale by a person authorised to sell, and On an indictment which charged that the prisoner, as servant of the (a) From the Law Times. Reported by W. F. FINLASON, Esq., Barrister-at-Law. he was bailee of the money, and might be convicted of stealing the money. Stephen, J. dissenting, on the ground that the prisoner was not a bailee of the money. CASE REG. บ. DE BANKS. 1884. -Fraudulent NASE reserved by the Deputy Chairman at the Easter Quarter Embezzlement Sessions for the County of Salop, held upon the 8th day of appropriation April, 1884. The case was thus stated: The prisoner, Mark De Banks, was indicted before me for embezzlement. 1. The indictment states: Shropshire to wit.-The jurors for our Lady the Queen upon their oath present that Mark de Banks, late of the parish of Whitchurch in the county of Salop, on the sixteenth day of January, in the year of our Lord one thousand eight hundred and eighty-four, being then employed as servant to Joseph Suker, did, by virtue of his said employment, then and whilst he was so employed as aforesaid, receive and take into his possession certain money (to wit), to the amount of fifteen pounds for and in the name and on the account of the said Joseph Suker his master as aforesaid, and did then fraudulently and feloniously embezzle the said money; and so the jurors aforesaid, upon their oath aforesaid, do say, that the said Mark de Banks, then in manner and form aforesaid, feloniously did steal, take, and carry away the said money, the property of the said Joseph Suker, from the said Joseph Suker his master as aforesaid; against the form of the statute in such case made and provided. 2. The evidence so far as it is material to the point reserved was as follows: Joseph Suker, the prosecutor, proved: On the 11th day of January, I drove a chestnut mare into Chester with prisoner. I left her at Mr. Wild's, a butcher. I engaged the prisoner to look after her. I said to him, "Do the mare well, and I will be here on Wednesday morning and will pay you for your work." He was to have charge of her till I came. I meant him to look after her altogether. I should not have objected to his doing anything else. On Saturday, the 12th day of January, I saw prisoner, I asked him how the mare looked, and he said she was as lame as a cat; he said he had removed her to his father's house. I said I should be at Chester by the first train. I told him the mare should be sold on the Wednesday morning when I went, as she would not do for me. I sent my wife on that morning. I have never received a farthing from the prisoner on account of the mare. Annie Suker, wife of prosecutor, proved: I went to Whitchurch on the 16th day of January. I saw prisoner in the street. I asked him if he had sold the mare: he said he had not. I went with him to Wild's stables. Saw mare taken out of the stables into the street. Prisoner was riding the mare about the fair. Mr. Foster bought her. Prisoner, Mr. Foster, and Arthan went to the Queen's Head together. I was outside the door and watched. I saw Foster give prisoner some money. Prisoner came out and showed me a cheque. He did not give it me. said he would go to the bank and get it cashed. I asked him for it several times but he would not part. He told me he had sold the mare for 131. He came out of the bank and said they would not cash him the cheque. I asked him to give it to me He of price by person autho rised to sell. REG. v. DE BANKS. and said I would pay his expenses. He would not do so. I said he must come with me to Whitchurch, and I must have either the money or the mare. I had great difficulty in getting 1884. him to the station. At Whitchurch, when we got to the gasEmbezzlement works, he bolted down a little alley which leads to the canal. I -Fraudulent ran after him and called, but he did not answer. I have never appropriation received any money for the mare. of price by Joseph Arthan proved sale of chestnut mare by prisoner to rised to sell. Foster and payment of 15l. to prisoner. person autho Robert Thomas, sergeant of police, proved that prisoner absconded from Whitchurch on the 18th day of January. Prisoner was arrested at Chester on the 31st day of January. 3. I held there was no evidence to go to the jury of the defendant's employment as a servant so as to make him guilty of embezzlement. It was then contended on behalf of the defendant that there was no evidence of the larceny of 151. I left the case to the jury, who found "that the prisoner had authority to sell the mare and converted the money to his own use,” and a verdict of "guilty of larceny" was recorded. I reserved sentence and offered to release prisoner on bail, but he was unable to find the requisite sureties. The question reserved for the opinion of the court is, whether there was any evidence of larceny which could properly be left to the jury. No counsel appeared. The learned judges conferred together, and then Lord COLERIDGE, C.J. said :-The case undoubtedly presents some difficulties, and raises some nice questions which we should have been glad to hear argued, but upon which, after full consideration, I have come to the conclusion that the conviction may be supported. It is a case in which the prisoner is indicted (and this is the only part of the indictment to which it is necessary to advert) for stealing the price of the mare. The prosecutor intrusted the prisoner with the care of the mare for some days; afterwards the mare was to be sold, and the prosecutor was to come in a day or two for the money. There may be considerable doubt whether under the circumstances his intrusting the prisoner with the mare to take care of it-it being in a day or two to be sold-would make him the prosecutor's servant, so as to create the offence of embezzlement. But the judge held otherwise, and the statute only justifies a conviction under it when the prisoner is found guilty, and here he was not found guilty upon that charge; so that it is too late to consider whether he could be convicted of embezzlement; and the only question is whether he was guilty of larceny. The mare was originally intrusted to the prisoner to take care of, afterwards to sell; and as the prosecutor could not go himself he sent his wife to receive the money from the prisoner. The wife was called, and her evidence was, that she saw the prisoner sell the horse and receive the price; and REG. บ. 1884. that he showed a cheque which he said he would take to the bank and get it cashed, but he said they would not cash it. She pressed DE BANKS. him for the money or the cheque, and followed him for some time, but he got away from her, and ran off with the money. The question is whether, under those circumstances, he took the Embezzlement money, and was guilty of larceny. It is not, as I have said, a ques--Fraudulent tion free from difficulty, but I am of opinion that he was guilty of appropriation larceny. I think the effect of the evidence is, that he was to sell of price by person authothe mare, and receive the money for the prosecutor; that is, he rised to sell. was to hand over the money, when he received it, to the prosecutor or his agent as and when he received it. The prosecutor was not able to go himself and sent his wife, and she actually saw him receive the money, and saw him immediately after his receipt of it, and asked him for it. It appears to me that at that moment she ought to have received the money, and he held it for her (that is, for her husband, represented by her). She demanded it, and he appropriated it to his own use; and it appears to me that, under these circumstances, the case came directly within the statute, that the prisoner fraudulently converted the money to his own use, and that therefore he was properly convicted. GROVE, J.-I am of the same opinion, though not without some doubt-indeed, considerable doubt-on one point, my doubt being whether the prisoner was a "bailee" of the money within the statute. The money was not given to him by the prosecutor for custody, but he received it under an authority to sell the mare and receive the price. There is ample evidence that he took the money and carried it away. The wife proves that he received the money for the mare, for she says that Mr. Foster bought the mare, and that she saw him give the prisoner money, and the prisoner told her he had sold the mare, and said he would go to the bank to cash the cheque (which may be true or false), and the money was retained by him. Was he bailee of the money for the prosecutor? I think he was, and not the less so because the prosecutor had not himself given him the money. That was the point on which I had a doubt, whether these facts made the prisoner bailee of the money, and I regret the case was not argued by counsel. But I am not aware of any case which makes a man any the less a bailee because he had not received the money or the goods directly from the hands of the owner. Assuming the prisoner to have been a bailee, I have no further doubt, for there is evidence that the prisoner, having the money, took it away and appropriated it to his own use. There was ample evidence, therefore, on which the jury could find him guilty of larceny. They have found him guilty of that offence, and I think that the conviction must be affirmed. FIELD, J.-I also think that the judgment must be affirmed, though I confess that I entertained at one time considerable doubt upon it, and that doubt is not diminished by the fact that one of my brethren (Stephen, J.) will not, I believe, be able to concur in our judgment. It seems to me, however, that there is REG. v. DE BANKS. 1884. Embezzlement person autho rised to sell evidence that the prisoner was a bailee of the money. What is the evidence? On the Wednesday, the day of Chester fair, when the horse was sold, the prisoner acted as agent in selling the horse. The prosecutor had put the horse in his hands, and sent his wife, who said she saw the prisoner sell the horse to Mr. -Fraudulent Foster and receive the money for it. Was he not a bailee of the appropriation money for the prosecutor? I think he was. I have a recolof price by lection of a case of Reg. v. Tatlock (13 Cox C. C. 328), the case of a broker to whom a customer had intrusted policies, the proceeds of which he had received; and he was held not a bailee of the money, as he had a right to mix it with his own moneys and to deduct his commission and pay his customer the balance. But that case does not apply to the present, for the evidence shows that the prosecutor never intended to intrust the prisoner with the money, but intended him to hand it over to him at once, and sent his wife for it. Was he not then a bailee of the money within the statute? I think he was; and that being so, there was ample evidence that he converted the money to his own use, and did so with felonious intent to appropriate it, for he kept the money and went away with it. I think, therefore, that the conviction may be well supported. STEPHEN, J.-I am sorry to be under the necessity of differing from my brethren, but the difference turns rather upon the interpretation of the facts than upon any principle of law. I think that the prisoner was not a bailee of the money, and that when the evidence is fully considered it shows that he was not So. There is a case I would refer to as in point (Reg. v. Hassall, L. & C. 58; 8 Cox C. C. 491), where the prisoner was indicted for larceny as a bailee, having had money deposited with him under an obligation to return the amount, but not to return specific coins; and he made away with the money, and never returned the amount. Upon argument the judges unanimously gave judgment in favour of the prisoner. Cockburn, C.J. said: The conviction cannot be sustained. The prisoner is indicted for larceny as a bailee. The word bailee must be understood here in its legal acceptation of a deposit of something to be returned in specie, and does not apply to the receipt of money with an obligation to return the amount, where there is no obligation to return the identical coin. That is not a bailment in the ordinary sense, and is not within the statute." Now was the prisoner in the present case under an obligation to return the particular coins which had been given to him as the price of the horse? As I understand the evidence, it seems to me that he was not, and that it was not understood by the parties at the time that he was to do so, but that the evidence positively negatives such a supposition. Whether or not, upon the evidence, the judge was right in directing the jury that the prisoner was not the servant of the prosecutor I do not say; but he did so direct them, and they accordingly acquitted the prisoner of embezzlement. The state of things was this: that the prisoner |