COURT OF APPEAL.

New Zealand Times, Volume XXXIII, Issue 5366, 8 June 1878, Page 1 (Supplement)

COURT OF APPEAL.

' Friday, May 31, 1 (Before their Honors the; Chief Justice, Mr, Justice Johnston, Mr. Justice Richmond, Mr. Justice Gillies, And Mr. Justice Williams.) - Judgments were delivered as follows: — REGINA V. BROWN. The Chief Justice: I am of opinion that the .first count in this indictment is good; but for. the Larceny Act Amendment Act, 1870, the conut would clearly been bad, inasmuch as it lays the property in the stolen goods in the prisoner himself jointly with another person named in the indictment, but the question is whether for that reason this count is bad, notwithstanding the provisions of the Act referred to. If so, the provisions of the Act, , so far as regards the offence of are wholly inoperative, 1 think that wherever beforo the act a person. charged with stealing would have been' entitled to be acquitted simply on the ground that he was a co-partner or a joint beneficial owner of the property alleged to have been stolen, that, nowi such defence shall no longer avail a person charged with stealing; that being the case, it matters not, I think, that on the: face of the indictment the person charged appears to be a joint owner of the property '(the subject of the indictment) if'the indict-, ment al*o alleges that the person charged and the other person or persons named as owners are co-partners in, or joint beneficial owners of, i the property. This count alleges a co-partner-ship, and, therefore, is within the Act. i I do not think it necessary ’ to ; endeavor, to define 1 what acts by a co-partner will by virtue of ■ the Act referred to constitute the offence of stealing partnership property, ; The -intention may have been to meet principally that, class of cases where a joint owner of property occupies the position of servant or clerk:to the other joint owners, and as such clerk tor servant has the custody of -partnership property, or receives property for the co-partners. ! (See R, v, Biprose 11, Cox 187, where Bovlll, C.J., speaks of the English Act, from which ours is copied, as having removed the difficulties arising In such cases.) The count does not allege that the person charged occupied any . such capacity ; it is necessary, therefore, that the Act should have some wider operation if i the .1 .count iis< to be held? good.. Though the . Act was . probably not intended to meet caaea where one person is bailee of, or has sole possession of partnership property, and one of the co-owners steals, such property ; from such person, for in those cases it had before the Act been held that the property might be laid in such person, and the co-owner convicted ‘ of larceny. (Sed R. Bramley, R. and R., 478; R, r. Webster, L. and 0., 77 ; R. v. Burgess, Xi. and C. f 290.) Yet, by virtue of this Act it would seem that now the property may be laid either in the, bailee or person having the possession of the property, or in the co-partners, for in the case of a bailee of goods the property may bo laid either in the bailee or bailor; beforo the Act in such a case the property could not * have beeu laid in the bailors where one of the bailors was the person charged (see R. v. Wilkinson, R. and R. 470; R. v. Bramley, • Id. 478); but now it could if the bailors ' were v co-partnere. Now, . for the: * purposes - of the present case it is suppoaabla that the evidence would prove such a state of things as that the property was taken from one who was a bailee from all the joint owners, or was entrusted by" them with the property. Should, that be so the evidence would support this count, if the accused co-owner did those acta which in the cases of R. 1 v. Bramley, K v. Webster, ■ and R. v. Burgess, the accused coowaer did, and for which he was convicted oh a count laying the property in the Whether the Court of Criminal Appeal was justified in assuming,: as it did in the case of R. v. Smith/ 39. L.J., M.C. 112, that.the Act !. :i, applied to such a ense as that of one partner fradulently disposing, of co-partnership goods which were hot in the possesson of a third person,. or,in the sole possession of another partner, bat were in the actual possession of the accused joint owner, it js hot necessary here to consider, ( It may be that the effect of the Actmauch a is to make the possession of the fraudulent |ointtewner ; hot his possession, but the possession,of,th? other Joint owner only, and so the fraudulent joint owner may “ take’’ the goods, foe the possession he has is not his own, hut that of Jiis co-owner. If-this view be correct,’ theu the'possession of the fraudulent co-owner-is like that of a servant, where possession Is not his own but hia master’s : and a servant might at common law be convicted of larceny, though the intention to convert the goods be not conceived until he has the custody of the goods, for a servant may feloniously “ take,” though the goods are in his hands, and though he did not obtain the’custody with any fraudulent intent. (See 1, Hale, 506, Reg. v. Harvey, 9, C.: and P., 353.) I am of opinion that the second count in the indictment is bad, because it does not allege that the acts;i were done feloniously, and that the acts alleged are not i iA indictable unless done For the samo reason and for the reasons given as to the third count/the fourth count is bad.. As. . to the third count*! think that it is bad for the f reason that there are hot alleged therein those, facta which are nepessa^y 4 to be alleged in a count for embezzlement. It seems to me the Larcenv Act Amendment Act, 1870,'does not create any new offence of embezzlement, but enables the indictment and punishment of a person for embezzlement in those cases where, such person, though a joint owner of property with others, occupies a position with regard to those others of clerk or servant, and as”' such receives on behalf of himself and the other ’ joint owners and fraudulently converts, the ’ same; and the Act also perhaps applies to other cases where the fraudulent joint owner, though cot a servant or clerk, occupies some position ' of trust With regard to hia co-partners as banker, agent, &c., and as such would be , indictable for the fraudulent. conversion of partnership n property if he were only banker or agent, and not joint owner of the property. On this view the Act would apply not only to felonious embezzlements as those • of clerk or servant, but also to certain embezzlements not felonies, all, however, being the /; creations of the Statute, law. , The Act above referred to does not make the mere fraudulent conversion, or disposal of partnership property by one partner, embezzlement, or any other * > .offence; and. consequently ,;I think that ‘ the third and fourth counts are bad. It seems to ■ mo prohabk that .the indictment in Regina ,v. Balls,;40, X.J., M.O. 148, is not fully set . out in the case, and that-that accounts for the • > * apparent - omiaaion of any averment in the several counts'therein that the accnaed .occupied the position of clerk or servant. If ;. In that case such .averments were not made in the' indictment, then the indictment must, have been framed- upon a supposition that a .. new offence won created. But, as pointed out :* . in the judgment of .my brother Richmond in • II.T. ‘Xaw, that Is not so; 1 and Wills, J., says • the same in B, Smith, supra : —"There is no , new species of offence’ created. The object is to bring certain persons within the operation of the criminal law.” I am of opinion that the judgment should be for the Crown on the ■. rfirat count, and for the prisoner on the other counts. It may be observed that the Larceny Act' Amendment Act, 1870, is a copy of an Act parsed in England, and known there as : .BumoU Gumoy’a Act, (See R. v. Blackburne, 11 1 Cox, 157, where the origin and history of ’’ the Act are given). ( Its provisions are also very similar to those of-the sth section of the Union-Bank of Australia Act. (See the Act in Domett’s Ordinances.) MMr,' Justice Johnston : I am of opinion that the first count of the Indictment is good, I ■ft think ithat the language of the Act of 1876 sufficiently shows that the intention of the Legislature was to make co-partners guilty of lacceny or embezzlement of the partnership *■ property under circumstances which would Lave piade them guilty of larceny or embezzlementif they had not beenpartners; and although the-language employed to effect this intention is elliptical, and such as to invite criticism and create doubt, I thiuk upon the whole that it cannot be.taken to mean anything else, and we arc therefore enabled to give it that construction Instead of holding it to bo altogether inoperative. 1 think the second and fourth coants are clearly bad, for not using the word (i feloniously ;” and I think the third count U . bad for not alleging that the relationship of clerk or servant existed between the prisoner aud the co-partnership. Judge Richmond : It seems to me impossible to,accede to the suggestion that the words “ shall steal ” in this enactment are to be taken as meaning "shall commit larceny.” I do not insist upon the objection that upon this reading of the 4 section the thing supposed, viz,, that a partner can be guilty of larceny of the partnership property . fa impossible ;. because (amongst other, reasons) it may be answered that Parliament , can put an enactment in the shape of a-sup-position, and even in the shap** of a false supposition respecting the existing law, and neither the mistake nor the hypothetical form should prevent effect being given to the intent of Legislature. Bat setting &mlo this objection the Legislature, upon the proposed interpretation of the word "steal,” expresses no intelligible purpose whatever/ Bo construed,, the section says that" If a partner shall commit

larceny he shall be punishable as if he; were not a partner.” No doubt—but surely a statute was not needed—to enact that, any one committing larceny should, . whatever .the subject matter of the thefts, be liable to be treated as a thief.: The question is,/when and under what r circumstances is it to bo held that a partner has commited larceny ? This question, upon the proposed construction, is left without an answer. It is plain that the intention was .to : make, criminal, in some degree, a clasS:o£ acta which did not previously constitute offences. Two things, therefore, must be defined, viz,—First, the class of acts in question ; the kind and degree of criminality to be at--tacked. Section 4of the Fraudulent Trustees Act, 20 and 21, Vic., c 64, (now forming jpart, of-the Larceny Act), affords a good and short specimen of what is wanted. It enacts* that “ if any person, being a bailee of any property, shall fraudulently take or convert the Bame,;to his own use, &c., he shall be guilty of larceny, •In the Larceny Act Amendment Act, 1870, there is only the one word, " steal,” which can define the class of acts to be made criminal. In deciding the case of Regina v. Law, it did not occur to me that the word, as applied part owner in possession, not unlawfully obtained, of partnership property, was capable of any other sense than that which X then .gave it, making , the words V shall , steal , equivalent to shall fcaudulentlyoouvert to his own use; nor was there evidence in that case of- a 1 stealing in any other sense. .-Subsequent consideration and the.araple discuaaion which tae question has now undergone have opened my raxnci to the possibility of giving a fuller meaning in this connection to the word ; one more nearly approaching the legal idea of larceny,: yet avoiding the absurdity which results from supposing the word "steal” to be used in the full sense of “ larceny.’* The case may lie supposed of a partner getting partnership prpperby into hia own solo possession, without the knowledge and against the will of his co-partners, in a furtive, that ;is, a thief-like manner., Of coarse, if such getting possession, amounted to a trespass, as it might do, and was followed by a fraudulent conversion, it would be larceny at common law ; and as a maxi can- be convicted of stealing his own property from a bailee..of it, so without doubt at common law may a a partner commit larceny of tha-partnership property when he unlawful! takes it out of the possession of some whether a copartner or a stranger, who may have become by arrangement exclusively, entitled,, to the custody of it.. In such a' case, without doubt, the offender. might be' convicted of larceny at common, law upon an-indictment laying the property in the person entitled to the possession. lam not hero putting, such a case as that, but a case iu which the possession is obtained secretly and furtively—say, by breaking open a safe in the. night-time—yet, the taker being: a part owner, obtained without any trespass, and but for this statute, without the commission of any offence. . Such an act, if followed by the conversion to,the us© of the taker, would be larceny in any person but a part owner; and to such an act, I think, the statute may apply, I read the words, " shall steal” as meaning “shall do something which, if the offender were not a partner, would be. larceny,” Then, by the latter part of the section; the offender is deprived; of the ; defence arising from his part ownership, and is left exposed to the ■ same penal consequences as, if. he. had been a stranger. , Upon, this view of the matter X am now of : opinion—contrary to the opinion expressed by me in Regina v. Law the statute is, in;certain cases,.effectual to, create a -new kind of, larceny.,; ; Such.a larceny is, I think, properly ’ charged by the first count of the : indictment before the. Court, which. L think is .g00d,... Bub if the evidence were- of the • same character as in Regina v. Law, there could, I hold, be no ‘conviction of larceny/ 1J agree ,with the rest of the Court that the second count, which ,is like the first, except that it omits the word "feloniously,”.is bad for that ominisaion; I am. farther of opinion that the third and fourth counts charging embezzlement are bad. Embezzlement is only an.offence when committedby persons in certain special relations. Felonious embezzlement can only be by a clerk’ or servant of the person ■ whose is taken, and it must be alleged and proved that; the defendant. was such. Non-felonions-em-bezzlement is also a special offence confined,to agents, bankers, factors, : ancT' trustees under special circumstances. The counts,; for em--bezzlement are bare of any averments which would bring the' case within the definition of any form of that offence. The statute does not purport to make ombezzlement by a partner criminal,' except in cases where it would be’ criminal f if * the ■ person were not a partner,. In the English cases upon the 31and32 Vic., ; c. 116, the main point discussed in this colony as to the meaning of the .word /‘steal”* has never been raised, and it has been taken for ; granted that there may be a conviction under the statute for larceny. No attempt has been made to define the circumstances under which a partner will be guilty of larceny,' or to, distinguish between larceny by’, a ..partner and embezzlement. r As regards the count for felonious embezzlement-it may be -thought that the case of Regina v. Edmund Balls, .L.R., I.C.C.R. 328, is an/authority for/supporting it, notwithstanding ; the omission: of auyi averment'that i the delinquent, partner was a clerk ■orservant of the firm;-. But the attention of the Court was never directed, to the point, nor do any of the reports of the: case set forth the actual terms of the indictment.

. ■ Judge Gillies ; It appears to me clear, that although badly expressed, the true intent and meaning of • the statute ; is that if any partner does any act or acts, which, if done by a nonpartner, would amount to a larceny or embezzlement, he shall be dealt with as if- ho were not a partner. The first count of the indictment is therefore good, and the demurrer thereto ought to be overruled. , ! Mr. Justice ‘Williams : I confess that I have not in this case found, any special difficulty in - the construction of/ the section of the Act on which the; indictment ia founded. Intake .the- word ” steal” not to be used as a term of art, but in its ordinary acceptation. The statute enacts that if'one partner shall steal any money, dec., belonging to the partnership, he shall be liable to be tried, dealt with, and convicted as if he had not been a partner. A person not a partner would not be liable to ho oonvicted'unless the particular act of stealing amounted to larceny, and the effect of .the statute is therefore to provide that where the act,:if committed by,a person not a partner, would have amounted to larceny, then the partner,.who commits it shall be treated as. if he . were not a i partner. I think, therefore/ that the first .count of ; the indictment is good. . The a-cond and fourth counts are clearly had; the offences dealt with by the statute are ; felonies,; and ■ the counts omit ■ the word “feloniously.” . I think also the third,, count - is.-had;- a partner by the express terms of the statute., is only; punishable ■ for embezzlomeat in cases where the act done would have amounted to embezzlement if fie had not been a partner. Embezzlement is_ not an offence, except in' the cases' in which it has- been constituted an offence by'particular statutes ; and the indictment should show that the embezzlement with which the accused is charged ,is of a kind which some, statute has made criminal. The form of indiotmeut ia the case of . Regina v. Balls certainly favors a contrary view, ;as in that case it appears that there was a simple allegation that the accused'had feloniously, embezzled money of a partnership. It is at least doubtful whether the whole of the indictment is sot out in the report ; and whether it is sot out or no the question of the sufficiency or insufficiency of the allegation as to the embezzlement was not raised. It was suggested that the whole, indictment was bad, as joining counts for felony and misdemeanour. Had there been such a joinder, the indictment would I think have bean bad on demurrer, but, no such joinder exists. The reason apparently why such a joinder would- vitiate, the indictment is, that a different judgment would bo given oa the count for felony from the judgment on the count for misdemeanour ; but the second and fourth ■ counts; though not counts for felony/ are not nscetfaarily , counts ,for misdemeanour. They charge no offence known to the law, and no judgment be given against the prisoner on them. ‘ 1 think, there-, fore, that the, judgment,sho*i, ...lie for tbs Crown on the first connt, and fur the . prison’ r on the last three counts of the