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REG.

v. DE BANK.

1884.

had possession of the mare, and the wife came to see after it, and asked him whether he had sold it, which implied an authority to him to sell it. She was present when the mare was sold, and did not interpose when the money was given to him, and he told her he had a cheque, and would go to the bank to get it cashed.

Embezzlement Now it seems clear that, if he had got the cheque cashed, she Fraudulent would not have objected, and that shows he was not bailee, or appropriation the mere hand to pass over to her whatever he received; but of price by that it was considered at the time by all parties that it would be rised to sell. the same thing whether he gave her the cheque or the proceeds, and if he paid over the proceeds it is obvious that he was not bound to deliver the specific coins. He went off, however, with the money, and no doubt he committed a moral fraud, and was as bad as a thief, and I am sorry that in the view I take of the law he could not be punished. But as the intention was that he should sell the mare and pay over the amount, and not pass over the specific coins received, I think he could not be properly convicted under this statute.

SMITH, J.-I am of the opinion of the majority of the court, that this conviction should be supported. The question left to us is whether, on the evidence, the prisoner was guilty of larceny, and I think there was reasonable evidence. There clearly was evidence that the prisoner was bailee of the money. The horse was delivered to him to sell, and give the money to the prosecutor; he had authority to sell, and the evidence showed that he was bailee of the money. The point is, whether there was reasonable evidence that the prisoner's duty was to hand over the money he received as the proceeds of the horse to the prosecutor or his agent, and I think the evidence showed that it was so, and for this reason, that the wife of the prosecutor, immediately after the sale, demanded the money from the prisoner, and he told her he had a cheque for 131. (which probably was a falsehood, for she saw money pass, and the price was 151.), and she asked again and again for the money, and he went away with it, and was not seen until apprehended. Upon the evidence I think it was the duty of the prisoner to hand over the money at once, and, as he absconded with it, I think that he was rightly convicted under this statute.

Conviction affirmed.

CROWN CASES RESERVED.

CAS

Saturday, May 10. (Before Lord COLERIDGE, C.J., GROVE, FIELD, STEPHEN, and

SMITH, JJ.)

Reg. v. MALLORY. (a) Indictment for receiving goods, knowing them to be stolen,

Evidence of guilty knowledge-Statement of price of articles produced by wife as in prisoner's presence, as made out at his

direction. The prisoner was indicted for receiving stolen goods, knowing them

to have been stolen. To prove his guilty knowledge, evidence was given that, being asked by the police as to the prices he had given, he said he did not then know, but his wife would make out a list of them, and next day she, in his presence, produced a

list, which was received in evidence against him. Held, that it was admissible. ASE reserved by the Chairman of the East Riding of York- .

shire Quarter Sessions, held at Beverley, April 9, 1884. It was stated in these terms :

The prisoner, George Mallory, was tried before me for receive ing certain articles, the property of Agnes Fitzpatrick, knowing the same to have been stolen. The following is a copy of the indictment:

East Riding of Yorkshire to wit.-The jurors for our Lady the Queen, upon their oath present, that George Mallory, between the seventeenth and thirtieth day of January, in the year of our Lord one thousand eight hundred and eighty-four, nineteen brass stair rods, seventeen pounds in weight of brass and bronze gas fittings, one brass pan, six black mantel vases, one inkstand, two framed pictures, two bedroom toilet covers, fifteen yards of oil stair canvas, three feather beds, eight feather pillows, six blankets, nine sheets, one pink and white counterpane, five table covers, one electro-plated teapot, one coffee pot, one sugar basin, one cream jug, one toast rack, two cruet stands, two looking glasses, and other articles of the goods and chattels of one Agnes Fitzpatrick, before then feloniously stolen, taken, and carried away, feloniously did receive and have, he the said George Mallory then well knowing the said goods and chattels to have been feloniously stolen, taken, and carried away, against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity.

The prisoner was a marine-store dealer, and it appeared from the evidence that the stolen articles were such as he might have bought in the lawful exercise of his business. It was not disputed by the prisoner (who was represented by counsel) that the goods had been actually stolen by the man who brought them to

(a) From the Law Times. Reported by W. F. FINLASON, Esq., Barrister-at-Lam.

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his shop, and the price given by the prisoner for the articles REG, thus became a material question in the case. With the object of

MALLORY. showing that the amount so paid was much less than the real value of the stolen goods, the counsel for the prosecution pro

1884. posed to put in evidence a list of the articles bought by the

Receiving prisoner with the amount paid by him for each of the several stolen goods – articles, a copy of which was attached to the case, and is as Evidence of follows:

guilty know

ledge. This is the paper or list produced to us, the undersigned three of Her Majesty's justices of the peace for the East Riding of the county of York, on the examination of George Mallory, charged with felony, and referred to in the examination of William Winterbottom touching the said charge taken before us this sixteenth day of February one thousand eight hundred and eighty-four.

Thos. RICKETT.
C. W. HUDSON.

HENRY DARLEY.
1884.

£ $. d. 22 Jan. Brass rods

0 1 6 23 Sheets, table cloths, towels

0 6 0 24 Blankets, canvas, knives, forks, spoons, 3 pillows

0 13 0 Tea service, 2 cruets, 5 pillows, pieco carpet

0 13 0 26 Feather bed.....

0 14 0 2 Feather beds, small looking-glass...

1 12 0 1 looking-glass ornaments........

0 6 0 The circumstances under which the list was tendered suffi. ciently appear from the following notes taken by me at the trial :

John Duke, police constable (after explaining the tracing, &c., of the stolen property), says: “I asked Mallory when he bought them. He was much put out and said he could not say, and I asked him to consider, and he said he would, and his wife would make out a list." This was on the 30th.

William Winterbottom, superintendent of police, said : "I went to the prisoner's house on the 31st, prisoner and his wife was there, when I called next day the wife, in her husband's (Mallory's) presence, handed me a list of goods, with dates and prices, she said, “This is the list of what we bought and what we gave for them.' The prisoner did not speak, but he heard what she said, and saw the list handed to me. I believe the whole of it is in the wife's handwriting.” This witness then produced the paper, and the counsel for the prosecution tendered it in evidence.

The counsel for the prisoner objected to its admission on the grounds, first, that the wife would be the proper person to prove its contents, and the evidence of a wife is not admissible against or for the husband; secondly, the paper is neither more nor less than the evidence of the wife against the husband, and is therefore inadmissible; thirdly, there is no evidence that the husband knew or saw the contents before it was handed to the superintendent, or that it was made by his direction, and in a criminal case the wife cannot be the agent of her husband.

I admitted the paper (which was read to the jury by the clerk of the peace), reserving for the consideration of the Court of

a

REG. Crown Cases Reserved the question as to whether or not I was

right in doing so. MALLORY.

It was proved that the value of the stolen property was greater 1884, than the sum shown by the paper to have been paid by the Receiving

prisoner. There was no other evidence of the price he paid. stolen goods The jury convicted the prisoner, and I sentenced him to four Evidence of months' imprisonment with hard labour, but respited execution guilty know- of the sentence until the Midsummer Quarter Sessions, and ledge.

admitted the prisoner to bail.

The question for the court is whether the paper above mentioned was rightly admitted in evidence. If so, the conviction is to stand; otherwise to be quashed.

Silvester for the prisoner.—The paper was not admissible in evidence against the prisoner. It was not made out at the time the things were bought, so it was no part of the res gestee. It was a mere statement in writing by the prisoner's wife. That it was handed to the policeman in his presence was no evidence that he had seen and read it and knew of its contents, or that he had any opportunity of correcting any error in it. The wife could not give evidence against her husband, and à fortiori her statement against him could not be evidence. Even if it had been shown that he had told his wife the prices he had given for the things, and she had written them down, that would not be evidence against him, unless shown to have been adopted by him, for it would still be only her statement. If her evidence could not be given directly, it could not be given indirectly. The admission of the agent is never evidence against the principal in criminal cases, as it may be in a civil case. In the case of Lord Melvill (29 State Trials, 750), who was charged with embezzling public money he had received, a receipt for money given by his agent was offered in evidence, but the Lord Chancellor held that it could not be given in evidence as a step towards proving the embezzlement. The Lord Chancellor said: “The evidence is offered to support articles of charge that he had taken and received from the moneys issued to him out of the Treasury large sums of money and that he misappropriated these sums; but, before it is possible to impeach him for the misapplication of the moneys issued to him, it must first be proved that the money was issued to him ; and the fact offered to be proved shows no more than that his paymaster did, in the ordinary course of business, give a certificate of his receipt of money, but whether it ever reached the noble lord does not appear. The receipt, therefore, could not be evidence against him." In the present case it must be assumed for the prosecution that the wife was the agent of the husband, and here it is proposed to give in evidence an admission by the agent against the principal, and in a criminal case. [FIELD, J.-It is a general rule that a statement made in the presence of the prisoner, and which he might have contradicted if untrue, is evidence against him.] That is the rule if the state

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REG.

v. MALLORY.

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ment is made to the prisoner; it is contended that it does not apply to statements merely made in the presence of the prisoner. Letters of the wife would not be evidence against her husband. [FIELD, J.-Surely they would if found in his possession and 1884. proved to have been received by him; they would be evidence.

Receiving STEPHEN, J.-There is a case like this (Williams V. Innes, stolen goods Campbell's Nisi Prius Cases, 364), where it was proved that, if Evidence of C. would say that he delivered the goods, he would pay for guilty knowthem, and a witness was called to prove that C., who was dead, had stated that he had delivered the goods, and Lord Ellenborough admitted the evidence, and said that, when a person referred to a statement made by another, he was bound by it.] That was a civil case, and here the case is criminal; and, moreover, it does not appear that the husband had seen the list. [Lord COLERIDGE.—If it is meant that the prisoner's having referred a witness to a certain person makes whatever that person may have said behind the back of the prisoner evidence against him, I must not be taken to assent to that, unless it has been so decided.] It is believed that it has never been so decided, and that the present contention comes in effect to that. [GROVE, J.-The present case goes beyond that, for the prisoner said his wife should make out a list of the things; and next day the wife produced a list in her husband's presence, and said that it was the list : is not that evidence against him?] It is submitted that it is not, as it is merely her statement. [GROVE, J.-It may be presumed that it is the list he had directed to be made out, and if so it would be his statement, not hers. It was a list made out by her. (Lord COLERIDGE. He heard what she said, and saw the list she produced.] Not the contents of it. [STEPHEN, J.-That would be a matter for the consideration of the jury.] If the wife had said in her husband's presence, These are the things we bought, and these are the prices we gave, and she had stated them in his hearing, that might have been evidence, but would not make the list evidence, for it had been made out by her, and it does not appear that he had read it. If it had been read out in his hearing it might have been evidence. [STEPHEN, J.-It is an admission made by the prisoner's authority, and is therefore an admission by him.

It was a statement made in his presence which he did not contradict.] It was not a statement made in his presence, because it was not read out nor read by him. [Lord COLERIDGE.

- There is evidence that he had authorised her to make out a list, for he said she should make out such a list, and next day in his presence she produces the list. Surely, that was evidence against him.] No, for there is no evidence that he had previously seen it or read it. (Lord COLERIDGE.—That would be for the jury to consider; and they would have to couple with what the wife said in her husband's presence what he had said before.] Still, it is only a statement by the wife. [Lord COLERIDGE.- Made in his presence and hearing; a conversation in the prisoner's presence,

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