The Temuka Leader. TUESDAY, APRIL 12, 1887. THE LARCENY CASE.

Temuka Leader, Issue 1567, 12 April 1887, Page 2

The Temuka Leader. TUESDAY, APRIL 12, 1887. THE LARCENY CASE.

The public of Temuka ar.b very much dissatisfied with the verdict givsn by Mr Beswick in the case in which J. W. Velvin w*s charged with the larceny of some tobacco from the shop of G. H. Reid, and we certainly must say that we are not surprised at it. They do not believe that Mr Vehrin’s action, though perhaps wrong, amounted to larceny; or, if it did, it was a larceny of a mild technical kind that might have been punished with less severity. The questions therefore that we propose to inquire into are: Did the evidence prove that Yelvin was guilty of larceny ? and, if so, Was the fine out of proportion to the degree of criminality reached by the accused ? Roscoo’s Digest is the best standard authority on the law re-,

lating to Larceny, and it appears to us that any one reading the chapter on larceny in that book mnst come to the conclusion that the conviction in Velvin’s case was wrong. Roscoe quotes the definition given by Mr East of larceny asThe wrongful or fraudulent taking and carrying away by one person of the mere personal goods of another with a felonious intent to convey them to his own use, and make them his property without the consent of the owner,” Eyre, C. 8., is quoted as defining larceny as “the. wrongful taking of goods with intent to spoil the owner of them, lucri causd” Blackstone says: u The taking must be felonious, that is, done animo furandi or, as the civil law expresses it, lucri eausd And further on it is explained that the words “animo furandi” and “lucri causd” mean the same thing as “ with a felonious intent” in English law, Roscoe gives his own definition of larceny as “ the wrongful taking possession of the goods with the intent to deprive the owner of his property in them.” It will be seen from all these quotations—and certainly they give the clearest definition of larceny it would be possible to give—that to constitute larceny the goods mfist be taken with the felonious intent of depriving the owner of bis property in them. The goods most be taken with “ a felonious intent,” for Blackstone says that “ the taking must bo felonious,” that is, they must be taken with the intention of never restoring them to their owner, or •anything else equivalent in value to them. The whole thing bangs on the intentions of the person taking them according to the above authorities. And now the question is what was Velvin’s intentions with regard to these goods ? Had be tbe intention of never returning neither the goods nor their value ? If he had be was guilty of larceny ; if be intended to pay for tbe goods bo was innocent of larceny, for the property in tbe goods consisted in their selling value, and if the price of them were handed to their owner, be would thus have his property restored to him, and be would have sustained no wrong. Roscoe eays on this point “ It is clearly laid down that although the party may wrongtnlly take possession of the goods, yet, unless be intends to deprive the owner of his property therein, this is a trespass only and not larceny.” The point now to consider is, what was Yalvia’s intentions 7 Roscoe again says, “ If a man carries away tbe goods of another openly, though wrongfully, before bia face, this carries with it evidence of being a trespass only.” No taking conld be more open than VelvinV taking of tbe goods in question. He took them in broad daylight, and having ascertained their value by weighing them in the presence, and with the assistance, of the prosecntor’s servant, directed to have them charged to bis account. The goods were on view for sale, the accused bought them, and if be bad handed over tbe price of them there and then there could not have been any trouble. That same evening he got other goods on credit in the same shop, that same evening he gave the prosecutor a tin of kerosene on credit, and why then should there have been an exception made with regard to the tobacco 7 And what was the evidence as to the question of credit 7 Mr Velvin went to the shop first and asked the boy about the tobacco. The boy replied that “ Mr Reid would be back in a minute.” Mr Taylor then went and »aked whether “ their (Yelvin and Taylor’s) credit was stopped.” Tbe boy said “ ISo, but Mr Reid said I wasn’t to give tobacco to any one without the money.” Mr Telvin then went back and told the boy he could do with all the “ Golden Eagle ” tobacco he had, and the boy proceeded to take the tobacco oat of the box stick by stick. Mr Yelvin suggested that this process ' was too slow and offered the boy assistance, which was evidently accepted, for the boy next assisted in weighing the tobacco, and to carry it across to the shop of the accused, where he saw it fairly weighed. It was alleged that Mr Velvin took the tobacco forcibly, but how could that be consistent with the boy proceeding to take it out of the box stick by stick 7 If Mr Velvin had stood by patiently the boy would eventually have handed it all over tbe aounter to him one stick after another. The evidence' showed there was no forcible taking'^no concealment; no intention of not accounting to the owner for the price of the goods; for the selling price and the weight was ascertained and duly taken account of by the prosecutor’s assistant. It was simply and solely a mere matter at accounts between the parties, and if, after the accounts came to a aettlemet Mr Velvin found the balance against him, he would not have hesitated to pay it. Kosooe says at page 646, “ Of course if the prisoner believed that he has a right to the goods there can be no larceny, even if the goods be taken by force, because though the seizure be wrongful the intent to steal is wanting.” Will Mr Baswick undertake to i prove that the intention to steal was not absent in Velvin’s case? There was no intention to steal in Velvin’s case, and therefore there was no larceny. Mr Velvin was certainly guilty of a little sharp practice. He believed money was due to him by Reid, and that Reid was negotiating some arrangements with his creditors, which might render the recovery of the amount due to him impossible. He made an effort to have it all “ taken out ” before the crash came. It may be said that in this way he was wronging the other creditors, but it was not the other creditors that prosecuted him, He would have had to ac- t

count to them for it, had nothing been done until the estate came into the hands of tbe Official Assignee. Thus Mr Velvin could have no “intention of stealing,” for he knew that he would have to account to either Mr Reid or his creditors for the value of the goods, there was no means by which he could have escaped. In all the quotations we have given and many more which could be given, the one leading idea is that the intention must be felonious, fraudulent, and thievish, else tbe taking of the goods will not constitute larceny. It "is impossible that Mr Velvin could have either a felonious, fraudulent, or thievish intention in taking these goods, for he would have to account to Mr Reid or

the Official Assignee for them. If Retd owed him money at tbe time of settling accounts he would have to give credit for the goods, or if he happened to owe Reid money he would have to pay it together with the vilue of the goods. He would have to settle with equal alacrity with the Official Assignee, so that he could not possibly have ever entertained the notion of retaining the goods without paying for them. Taking all these into consideration we have no hesista-

tion in saying that the conviction was altogether wrong, and that if appealed against it woold be at once quashed. With regard to the penalty, even if it were technically a larceny, the fine was monstrously out of proportion to the offence, and we think the magistrate who made such a blunder ought to be the first to make an effort to rectify a palpable mistake.