[Criminal Law] Queen v. Ashwell

[Sovereign (gold) mistaken for a Shilling.]Queen. v. Ashwell.1885 Ashwell was tried for larceny of a sovereign, the moneys of Edward Keogh. Keogh and Ashwell met in a public-house … At about 8 p.m. Ashwell asked Keogh…to lend him a shilling, saying that he had money to draw on the morrow, and, that he would then repay him. Keogh consented, and, putting his hand in his pocket, pulled out what he believed to be a shilling, but what was in fact a sovereign, (They were drunken) … About 9 the same evening Ashwell obtained change for the sovereign at another public-house.… But he afterwards said, " I had the sovereign, and spent half of it, and I shan't (shell not) give it back because I only asked him to lend me a shilling." Judges being equally divided in opinion as to whether he had been guilty of larceny at common law. The conviction therefore stood.   Cave, J., said :…Possession unaccompanied by ownership is of doubtful benefit; for … they are accompanied also by liabilities towards the absolute owner which may make the possession more of a burden than a benefit. … a man does not consent to that of which he is wholly ignorant; and I think, therefore, it was rightly decided that the defendant, in Merry r. Green (7 M. & W. 623), was not in possession of the purse and money until he knew of their existence.… If he had … still under the impression that it was only a shilling, I think he could have been made responsible for the return of a shilling and a shilling only, since he had consented to assume the responsibility of a possessor in respect of a shilling only. It may be said that a carrier is responsible for the safe custody of the contents of a box delivered to him to be carried, although he may be ignorant of the nature of its contents … In this case Ashwell did not hold himself out as being willing to assume the responsibilities of a possessor of the coin whatever its value might be; nor can I infer that at the time of the delivery he agreed to be responsible for the safe custody and return of the sovereign. As, therefore, he did not at the time of delivery subject himself to the liabilities of the borrower of a sovereign, so also, I think that he is not entitled to the privileges attending the lawful possession of a borrowed sovereign.  When he discovered that the coin was a sovereign, he was, I think, bound to elect, as a finder would be, whether he would assume the responsibilities of a possessor ; but at the moment when he was in a position to elect, he also determined fraudulently to convert the sovereign to his own use ; and I am, therefore, of opinion that he falls within the principle of E. v. Middleton (L, E. 2 C. C. E. 38), and was guilty of larceny at common law."  Lord Coleridge, C. J., said : "It appears to me that the sovereign was received by the prisoner and misappropriated by him at one and the same instant of time.  … if at the very moment of the receipt of a chattel the receiver intends to misappropriate and does misappropriate it, he is guilty of larceny. …great deference to my brother Smith, to be the answer to the exceedingly able and ingenious passage in his judgment in which he says that it is a fallacy to confound two things so utterly different as the discovery of a mistake and the stealing of a chattel.  … sometimes the discovery of a mistake and the stealing of chattel may be the same, or rather may be two forms of words equally descriptive of the same facts, if, as here, the chattel is really discovered and stolen at one and the same instant of time. … The leading case was distinguished and discussed in E. v. Flowers (16 Q. B. D. 643, and 16 Cox, C. C. 33), where a Leicester workman received some money innocently, but afterwards fraudulently appropriated it. … Judges were of opinion that, to justify a conviction for larceny, the receipt and appropriation must be contemporaneous." … Some of the Judges thought that the facts of the case did not shew an innocent reception of the sovereign, and said that it was larceny; others thought that the reception was innocent and held that it was not larceny.… Where a man, driving a flock of lambs from a field, drove, with the flock, a lamb belonging to another person, without knowing that he did so, and afterwards, when he discovered the fact, sold the lamb, denied having done so, and appropriated the proceeds to his own use, the Court held that he was rightly convicted of larceny; … (the trespass continuing all along) became a felonious trespass. (E. v. Eiley, Dears. C. C. 149.)