a thing of which he gives his servant the custody. He retains a power over the thing which is not the less real or effective because he has to exercise it through the will of another person, who has undertaken to be the instrument of his will. Suppose, however, that instead of the master's having given his horse to his groom or his plate to his butler, a horsedealer has delivered the horse to the groom, or a silversmith has delivered plate to the butler for his master: I should have thought that there was no real difference between these cases; that inasmuch as the servant in each case was acting for the master in the discharge of a duty towards him, and under an agreement to execute his orders, the master would come into possession of the horse or the plate as soon as his servant received it from the dealer or the silversmith, just as he remains in possession of the horse or the plate when he gives the custody of it to his groom or his butler. I should also have thought that the servant who appropriated his master's property to his own use, after receiving it from another on his master's account, was for all purposes in precisely the same position as the servant who did the same thing after receiving it from his master. The Courts, however, decided otherwise. They have held on many occasions that, though the master's possession continues when he gives the custody of a thing to his servant, it does not begin when the servant receives anything on account of his master; on the contrary, the servant has the possession, as distinguished from the custody, until he does some act which vests the possession in his master, though it may leave the custody in himself. If during that interval he appropriates the thing, he commits embezzlement. If afterwards, theft. The most pointed illustration of this singular doctrine which can be given occurs in the case of R. v. Reid (Dear. 257). B. sent A., his servant, with a cart to fetch coals. A. put the coals into the cart, and on the way home sold some of them and kept the money. A. was convicted of larceny, and the question was whether he ought to have been convicted of embezzlement. It was held that the conviction was right, because though A. had the custody of the cart all along, yet the possession of it and its contents was in B., and though A. had the possession of the coals whilst he was carrying them to the cart, that possession was reduced to a mere custody when they were deposited in the cart, so that A.'s offence was larceny, and not embezzlement, which it would have been if he had misappropriated the coals before they were put into the cart. These explanations will, I hope, render the article in the Digest 392 A DIGEST OF THE CRIMINAL LAW. intelligible. In order to justify it legally, it is necessary to state the manner in which I arrived at it. I examined a large number of cases, of which I have put eleven in the form of illustrations to the article. In some of these cases it was decided that the offence was theft; in others that the offence was embezzlement. I have assumed (as I was entitled to do, as appears from the explanations given above) that whenever an offence was held to be theft the property stolen was in the possession of the owner or master, although it might be in the custody of a guest or servant; and that whenever the offence was held to be embezzlement the property embezzled was in the possession, as distinguished from the custody, of the servant. I might easily have enlarged the number of illustrations to any conceivable extent; but if those given are not enough to make the matter plain, I despair of making it plain or understanding it, and I do not wish to make it darker than it is. It is, perhaps, just worth while to add once more, that I am in this work merely stating, and not attempting to justify, the law. The technicalities on this subject appear to me to be altogether superfluous, and I think they might be easily dispensed with by re-defining the offence of theft, or even by removing the distinction between theft, embezzlement, and false pretences. INDEX. A. ABDUCTION, 191, 193: See PERSON (Abduction). ABORTION, procuring, 173: See PERSON (Malicious Injuries). ABUSES, of public authority: See PUBLIC AUTHORITY (Offences by ACCESSORY, incitement a misdemeanor, 37 conspiracy to commit a crime, 37 principals in first degree, 29 crime partly in one place, partly in another, 29 principals in second degree, 30 aiders and abettors, 30 common purpose, 31 before the fact, 32 definition, 32 in misdemeanors, 32 mere knowledge of act not sufficient, 32 crime, probable consequence of, 33 after the fact, 35 definition, 35 married woman, 35 trial and punishment of, 35, 36 ACCIDENT, death caused by, 143, 157: See PERSON (Homicide). ACCOMPLICE: See ACCESSORY. ADMIRALTY: See PUBLIC ORDER (Piracy). AFFRAY, 40: See PUBLIC ORDER (Internal by Force). AGENTS, frauds by, 275, 277: See PROPERTY (Frauds). AGGRAVATED ASSAULTS, 181: See PERSON (Assault). AMBASSADORS, privileges of, 67: See PUBLIC ORDER (External). larceny of, 218: See PROPERTY (Larceny). killing with intent to steal, 251: See PROPERTY (Larcenies of other stealing domestic, 259 wounding, 322, 331: See PROPERTY (Malicious Injuries). APPREHENSION, assaults to prevent, 179: See PERSON (Assault). bodily harm done in course of, 135: See PERSON (Lawful Injury). breach of contract in not providing for, 344: See PROPERTY (Trade). ARMS, going armed, 48: See PUBLIC ORDER (Internal by Force). ARREST, in pursuit of game, 53 unlawful drilling, 56 bodily harm done in course of, 135: See PERSON (Lawful Injury). ARSON, 318: See PROPERTY (Malicious Injurieɛ). ASSAULTS, 177: See PERSON (Assault). ASSEMBLY, unlawful, 48: See PUBLIC ORDER (Internal by Force). to commit murder, 167: See PERSON (Murder). definition of, 37 misdemeanors, 37, 39 AVOWTERER, larceny by, 229: See PROPERTY (Larceny). B. BAILEES, larceny by, 229: See PROPERTY (Larceny). BANKERS, frauds by, 275: See PROPERTY (Fraud). BANK NOTES, forgery of, 293, 300: See PROPERTY (Forgery), fraudulent, 339: See PROPERTY (Trade). false claim on estate of, 342 BARRATRY, 97: See PUBLIC AUTHORITY (Misleading Justice). BATTERY, 177: See PERSON (Assault). BAWDY HOUSES, 122: See PUBLIC MISCHIEF. BETTING HOUSES, 123: See PUBLIC MISCHief. BILLS OF EXCHANGE, forgery of, 294: See PROPERTY (Forgery). drawing without authority, 297 forgery of foreign, 303 BIRTH, concealment of, 169: See PERSON (Murder). BLASPHEMY: See PUBLIC MISCHIEF. BODILY HARM, 157, 179: See PERSON (Homicide; Malicious Injuries). BRIBERY, 89: See PUBLIC AUTHORITY. BRIDGES, nuisance to, 128: See PUBLIC MISCHIEF. damaging, 320: See PROPERTY (Malicious Injuries). exploding, 174: See PERSON (Malicious Injuries). BURGLARY, 247: See PROPERTY. BURIAL, prevention of, 118: See PUBLIC MISCHIEF. C. CANALS, damaging, 320, 325: See PROPERTY (Malicious Injuries). CARDS, cheating at, 269 CARNAL KNOWLEDGE: See CHILD. CATTLE, wounding, 323, 331: See PROPERTY (Malicious Injuries). stealing, 219, 251: See PROPERTY (Larceny). CAUSE OF DEATH, 151: See PERSON (Homicide). CHALLENGING, to fight, 48: See PUBLIC ORDER (Internal by Force). CHASTISEMENT, lawful, 138: See PERSON (Lawful Injury). CHEATING, 269, 272: See PROPERTY (False Pretences). CHEQUES, forgery of, 294: See PROPERTY (Forgery). |