[Criminal Law] R. v. Ashwell and other related UK cases.

[강석근]

keemj 연구생님이 올려 주신 자로 에서 ASHWELL 외 다른 영국Larceny 케이스를 읽어 보았습니다. 미국법은 아니지만 충분이 도움이 될 것 이라 판단 했고 많은 도움을 받은것 같습니다.

https://cafe.daum.net/KOABELS/NzsH/6967

Sovereign mistaken for

a Shilling.

R. v. ASHWELL. (1885) [65]

[16 Q. B. D. 190; 16 Cox, C. C. 1.]

Drinking together one January evening at a publichouse in Leicestershire, Ashwell asked Keogh to come into the yard. There he requested Keogh to lend him a shilling. Keogh consented, gave Ashwell what both of them thought was a shilling, and then went home. Ashwell soon discovered that his friend had made a mistake, and that the coin in his possession was not a shilling, but a sovereign. Instead of returning it, he fraudulently appropriated it to his own use, changing it the same night at another publichouse, and afterwards giving false and contradietory accounts as to how he had got it. On these facts (after conviction by a jury) it was held that the prisoner had not been guilty of larceny as a bailee, and the judges were equally divided in opinion as to whether he had been guilty of larceny at common law. The conviction therefore stood.

Ashwell은 Keogh돈의 절도 혐의로 재판을 받았습니다. 두 사람은 술집에서 만났고 Ashwell은 Keogh에게 실링을(작은 가치의 돈) 빌려주길 바랬으며 다음날 갚겠다고 약속했습니다. Keogh는 동의했지만 실수로 Ashwell에게 사버린을(높은 가치의 돈) 대신 빌려주었습니다.

Ashwell은 다른 술집에서 빌린 돈의 일부를 사용했습니다. 다음날 아침 Keogh가 실수를 알리기 위해 Ashwell의 집에 갔을 때 Ashwell은 사버린 을 받은 사실을 부인했습니다.

그러나 그는 나중에 그 사실을 인정 했고 돈의 절반을 썼다고 말했습니다. 하지만 그는 실링만 요구했으니 Keogh에게 돈을 돌려줄 필요가 없다고 주장 했습니다.

Cave, J., said, " The acceptance by the receiver of a pure benefit unmixed with responsibility may fairly be, and is in fact, presumed in law until the contrary is shown; but the acceptance of something which is of doubtful benefit should not be, and is not, presumed. Possession unaccompanied by ownership is of doubtful benefit; for although certain rights are attached to the possession of a chattel, they are accompanied also by liabilities towards the absolute owner which may make the possession more of a burden than a benefit.

In my judgment a man cannot be presumed to assent to the possession of a chattel; actual consent must be shown. Now 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 v. Green (7 M. & W. 623), was not in possession of the purse and money until he knew of their existence. Moreover, in order that there may be a consent, a man must be under no mistake as to that to which he consents; and I think, therefore, that Ashwell did not consent to the possession of the sovereign until he knew that it was a sovereign. Suppose that, while still ignorant that the coin was a sovereign, he had given it away to a third person who had misappropriated it, could he have been made responsible to the prosecutor for the return of 20s. ? In my judgment he could not.

Cave, J.

되돌려줄 책임이 없는 순수한 돈의 획득은 일단 합법적 이나 책임이 있을 법한 의심스러운 돈을 받는 것은 그렇지 않습니다. 소유권이 수반되지 않는 소유는 의심스러운 이익입니다.

동의는 추정할 수 없습니다. 실제 동의가 있어야 합니다. 일반적으로 자신이 전혀 알지 못하는 것에 동의하지 않습니다. 따라서 Green 케이스 에서 피고가 지갑과 돈의 존재를 알기 전까지는 지갑과 돈을 소유하지 않은 것이 되었습니다.

따라서 Ashwell은 그것이 사버린 이라는 것을 알기 전까지는 돈의 소유에 동의하지 않았다고 생각합니다. 동전이 사버린 이라는 사실을 모른 체 그것을 제3자에게 주었다면,  피고에게 책임을 물어야 할까요?  제 판단은 “아니오” 입니다.

If he had parted with it innocently, while 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; but in that case the carrier consents to be responsible for the safe custody of the box and its contents whatever they may happen to be; and, moreover, a carrier is not responsible for the loss of valuable articles, if he has given notice that he will not be responsible for such articles unless certain conditions are complied with, and is led by the consignor to believe that the parcel given to him to carry does not contain articles of the character specified in the notice.

(Batson v. Donovan, 4 B. & A. 21.)

앞서 가정한대로 그가 만약 사버린 인줄 모르고 3자에게 주었고 그에게 책임을 물을 수 없다면 그 이유는 그가 오로지 실링에 대해서 책임지기로 동의 했기 때문 입니다.

예를 들어 운송인은 그것을 확실하게 보관할 의무만 있지 상자에 내용물에 대해서는 모를 수 있습니다. 따라서 운송인은 처음에 위탁자 에게 귀중품에 대한 책임을 지지 않는다는 공지를 한 후 위탁자가 별도로 귀중품에 대한 부탁을 하지 않는 한 운송 중 귀중품 손실에 대한 책임을 지지 않습니다.

마찬가지로 Ashwell이 동전의 가치가 무엇이든 간에 모든 책임을 기꺼이 떠맡을 것이란 약속을 하지 않았고 때문에 돈을 받았을 당시에 사버린 을 빌린 것이 아닙니다.

하지만 그가 빌린 사버린 의 소유 할 자격은 없다고 생각합니다. 그가 동전이 사버린 이라는 것을 알았을 때, 그는 그 책임을 맡을 것인지의 여부를 선택할 했어 야만 했습니다. 그러나 그는 불법적으로 그것을 사용 하기로 결정했습니다. 그러므로 그는 관습법 R. v. Middleton에 의해 절도죄를 저질렀습니다.

Middleton 케이스는 아래에 있습니다. 우체국직원이 실수로 피고에게 큰 돈을 전달한 케이스.

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 R. v. Middleton (L. R. 2 C. C. R. 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. In good sense it seems to me he did not take it till he knew what he had got ; and when he knew what he had got, that same instant he stole it. According to all the cases, 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. I think for the reasons I have given, and in the sense I have defined, the prisoner did so here: and this seems to me, with 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. I do not shrink from the conclusion, which seems to me good sense, that sometimes the discovery of a mistake and the stealing of a 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. This would be my view if the case were bare of authority, and the matter were res integra. But it is not res integra, and there is abundant authority.

Res integra. A whole thing; a new or un- opened thing. The term is applied to those points of law which have not been decided, which are untouched by dictum or decision. 3 Mer. 269.

On this part of the case, I concur with my brother Cave. I think we cannot reverse this conviction without practically overruling Lord Eldon in Cartwright v. Green (8 Ves. 405), the Court of Exchequer in Merry v. Green (7 M. & W. 623), and the dicta cited by my brother Cave from the judgment of the majority of the judges in R.. Middleton. I can see no sensible or intelligible distinction between the delivery of a bureau not known to contain a sum of money or a purse and the delivery of a piece of metal not known to contain in it 20s.; and the passage in the judgment of Sir A. Cockburn, which was assented to by the majority of the judges in R. r. Middleton, appears to me, as it does to my brother Cave, to bo decisive of this case."

C. J. 콜리지

피고는 사버린 을 받았고 받은 순간 그는 그것을 사용하기로 했다고 생각합니다. 그것이 사버린 인지 알았을 때까지 그것을 받지 않았다고 볼 수 있습니다. 그리고 사버린 인줄 알았을 때, 바로 그 순간 그는 그것을 훔쳤습니다. 동산을 수령 한 바로 그 순간에 수령자가 그것을 유용하려고 의도했다면 그는 유죄입니다. 나는 피고가 그렇게 했다고 생각합니다. 실수의 발견과 절도와 같이 완전히 다른 두 가지를 혼동하는 것은 오류입니다. 때로는 실수의 발견과 절도가 동일할 수도 있습니다. 문제가 res integra라면 이것이 내 견해입니다. 그러나 그것은 res integra가 아니며 많은 경우가 있어 왔습니다.

케이브의 말에 동의합니다. 나는 Green과 Middleton 기각하지 않고는 이 유죄 판결을 뒤집을 수 없다고 생각합니다. Middleto이 이 사건에 결정적인 역할을 한다고 생각 합니다.

 Middleton 케이스는 아래에 있습니다. 우체국직원이 실수로 피고에게 큰 돈을 전달한 케이스.

[Sills for prisoner; A. K. Loyd for Crown.]

The leading case was distinguished and discussed in R. v. Flowers (16 Q. B. D. 643), where a Leicester workman received some money innocently, but afterwards fraudulently appropriated it. " If the judgments of the seven judges," said Lord Coleridge, C. J., "who affirmed the conviction in R. v. Ashwell are carefully read, it will be seen that there is a substantial difference between that case and the present, and that those judges were of opinion that, to justify a conviction for larceny, the receipt and appropriation must be contemporaneous." I am of the same opinion," said Manisty, J., 6 and am glad that the opportunity has occurred for stating the substance of the decision in R. v. Ashwell. The difference of opinion amongst the judges in that case was founded on the facts of the case, and on the application to those facts of the settled principle of law, that innocent receipt of a chattel, coupled with its subsequent fraudulent appropriation, does not amount to larceny.

Some of the judges thought that the facts of that case did not show 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.

I am glad to think that the old rule of law still exists in its entirety.” “The old rule of law," said Sir Henry Hawkins, "was never really questioned in R. v. Ashwell. This case is altogether different."

이 사건은R. v. Flowers에서 구별되고 논의 되었습니다. (노동자가 모르고 돈을 받았지만 나중에 불법적으로 사용한 사건. )

절도에 대한 유죄 판결을 내리기 위해 수령과 불법적인 사용이 동시에 이루어져야 합니다. 악의 없는 수령과 분리된 불법적인 사용은 절도에 해당하지 않습니다.

Ashwell 사건에서 판사님 중 일부는 사건의fact가 사버린 의 악의 없는 수령이 아니라고 생각하고 그래서 절도라고 판단 했고 다른 판사님들은 동전의 수령이 악의가 없었다고 생각했고 그것이 절도가 아니라고 주장했습니다.

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; for having, in the first instance, driven away the lamb, the property of another, he committed a trespass, which as soon as he resolved to dispose of the animal (the trespass continuing all along) became a felonious trespass. (R. v. Riley, Dears. C. C. 149.)

양 떼를 몰고 가다가 모르고 다른 사람의 양을 데려왔고 그 사실을 알게 된 후 양을 팔고 그렇게 한 것을 부인하고 돈을 사용했을 때 법원은 절도 혐의로 판결했습니다. 먼저 다른 사람의 양을 불법점유 했고, 그 양을 처분하기로 결심하자마자 (불법점유는 계속됨) 중범죄가 되었습니다. (여기서 불법점유는 중범죄felony 가 아닌 걸로 보입니다.)

Larceny through Mistake of Post Office Clerk.

R. v. MIDDLETON. (1873) [66]

[L. R. 2 C. C. R. 38; 42 L. J. (M. C.) 73 ; 28 L. T. 777; 12 Cox, C. C.

260, 417.]

The prisoner was a depositor in the post office savings bank at Notting Hill, where the sum of 11s. stood to his credit. Homade arrangements for withdrawing 10s. of it, and went to the post office for the purpose. The clerk referred to the wrong letter of advice, and, instead of handing the customer his 10s., put down 87. 16s. 10d. on the counter. The prisoner took up the money and went off, having at the moment of taking it up an animus furandi, and knowing the money to be the money of the Postmaster-General. By eleven against four, the judges decided that the prisoner was guilty of larceny.

피고는 우체국에 현금을 출금하러 갔다가 직원의 실수로 출금 하려 했던 금액보다 훨씬 많은 돈을 받았습니다. 그는 그것이 자신의 돈이 아니라는 사실을 알고 있었지만 돈을 가지고 우체국을 떠났습니다. 11 대 4로 판사는 피고가 larceny라고 결정했습니다.

Of these eleven judges seven held that the prisoner was guilty of larceny on the ground that, even assuming the clerk to have the same authority to part with the possession of, and property in, the money which the Postmaster-General would have had, the mere delivery under a mistake, though with the intention of passing the property, did not pass the property; and the possession being obtained animo furandi, there was both a taking and a stealing within the definition of larceny.

FURTUM EST CONTRECTATIO REI ALLENZE FRAUDULENTA, CUM ANIMO FURANDI, IN- VITO ILLO DOMINO CUJUS RES ILLA FUER- AT. 3 Inst. 107. Theft is the fraudulent handling of another's property, with an intention of stealing, against the will of the proprietor, whose property it was.

From Black’s Law Dicitonary

“ANIMO FURANDI” 는  “intention of stealing” 로 해석 됩니다.

직원은 우체국장의 권한을 가지고 있고 비록 실수로 돈이 전달 되었지만

ANIMO FURANDI 있었으므로 유죄 입니다.

Three judges supported the conviction on the ground that the clerk had only a limited authority to part with the money to the person named in the letter of advice, and therefore no property passed to the prisoner, and the possession was obtained animo furandi.

한 판사님은 직원은 돈을 전달한 권한이 있지만 오직 유효한 상대에게만 전달 할 수 있는 권한이 있으므로 직원의 실수를 정당화 할 수 없기에 피고는 유죄라고 판결 하셨습니다.

One judge (Pigott, B.) upheld the conviction on the ground that the mistaken act of the clerk in placing the money on the counter stopped short of placing it completely in the prisoner's possession, and that his subsequently taking it up was larceny.

[Sir J. D. Coleridge, A.-G., Metcalfe, and Slade for Crown.]  

한 판사님은 돈을 완전히 전달 한 것이 아니라 카운터에 올려놓았기 때문에 피고는 유죄라고 판결 하셨습니다.

The ground on which the opinion of the four judges, who considered the prisoner not guilty, proceeded was, that the clerk had a general authority to part with the property in the money, and that he intended, although acting under a mistake, to part with such property to the prisoner at the time he handed over the money to him, and that, having such general authority and such intention, and acting upon them, there was no felonious taking by the prisoner, without the consent and against the will of the owner.

무죄라고 판단 하신 판사님은, 직원이 돈을 전달할 권한이 있고 실수로 돈을 나누어 주었으므로 피고에게는 ANIMO FURANDI 없다고 판단 하셨습니다.

The swindle called " ringing the changes" may be alluded to here. Two men went to an inn in Worcestershire, and, by a series of tricks, fraudulently induced the barmaid to pay over moneys of her master to them, without having received from them in return the proper change. The barmaid had, of course, no authority to pay over money without receiving the proper change, and was completely taken in by the men. It was held that they were guilty of larceny. (R. v. Hollis, 12 Q. B. D. 25.) 6 T cannot see," said Lord Coleridge, C. J., " if a person goes into a place and fraudulently, by a series of tricks, obtains possession of property from another, which that other has no intention of parting with, how the offence can fail to be larceny."

남자들이 한 여관을 방문하여 바텐더를 사기로 속여 올바른 잔돈을 주지 않고 필요 이상으로 많은 돈을 주도록 했습니다. 바텐더는 그들의 속임수를 알지 못했고 거래를 할 권한도 없었지만 돈을 내 주었습니다. 남자들은 절도죄로 기소되었고 유죄판결이 내려졌습니다. 이 사건은 돈을 내줄 의사가 없는 사람으로부터 재산을 속임수 빼앗는 다면 절도가 될 수 있음을 의미 합니다.

Other eases in point are : -R. v. Davenport, 2 Russell on Crimes, 5th ed. p. 147; R. v. Atkinson, 2 East, P. C. 673; R. v. Pearce, 2 East, P. C. 603; R. v. Kay, Dears. & B. C. C. 231; R. v. Jones, Den. C. C. 188; R. 2. Gillings, 1 F. & F. 36; R. v. Longstreeth, 1 Moo. C. C. 137; R. v. Little, 10 Cox, C. C. 559 ; R. v. Adams, Den. C. C. 38 ; R. v. Prince, L. R. 1 C. C. R. 150; R. v Jackson, 1 Moo. C. C. 119.

Larceny by Finder.

R. v. THURBORN. (1849) [67]

[1 Den. C. C. 387 ; T. & M. 67; 2 C. & K. 831; 18 L. J. (M. C.) 140 ;

13 Jur. 499.]

The prisoner was tried before Parke, B., at the Summer Assizes for Huntingdon, 1848, for stealing a bank note.

He found the note, which had been accidentally dropped on the high road.

There was no name or mark on it, indicating who was the owner, nor were there any circumstances attending the finding which would enable him to discover to whom the note belonged when he picked it up, nor had he any reason to believe that the owner knew where to find it again. The prisoner meant to appropriate it to his own use when he picked it up. The day after, and before he had disposed of it, he was informed that the prosecutor was the owner, and had dropped it accidentally; he then changed it, and appropriated the money taken to his own use.

피고는 길에서 우연히 수표를 주었습니다. 수표는 다른 어느 수표와 다를 것이 없었고 이름도 적혀 있지 않았습니다. 그는 그것을 바로 사용 하기로 마음 먹었고 (다음날 원고가 수표를 길에 떨어뜨렸다는 소식을 들었지만) 돈으로 바꾸어 사용을 했습니다.

The jury found that he had reason to believe, and did believe it to be the prosecutor's property, before he thus changed the note.

The learned Baron directed a verdict of guilty, intimating that he should reserve the case for further consideration.

The case came before the Court of Crown Cases Reserved, consisting of the Lord Chief Baron, Patteson, J., Rolfe, B., Cresswell, J., Williams, J., Coltman, J., and Parke, B., and the judgment of the Court was delivered on the 30th of April, 1849, by Parke, B., in the course of which judgment the learned Baron said : "In order to constitute the crime of larceny there must be a taking of the chattel of another animo furandi, and against the will of the owner. This is not the full definition of larceny, but so much only of it as is necessary to be referred to for the present purpose; by the term animo furandi is to be understood, the intention to take, not a particular temporary but an entire dominion over the chattel, without a colour of right. As the rule of law founded on justice and reason is, that actus non facit reum nisi mens sit rea, the guilt of the accused must depend on the circumstances as they appear to him, and the crime of larceny cannot be committed, unless the goods taken appear to have an owner, and the party taking must know Or believe that the taking is against the will of that owner.

*

*

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“The rule of law on this subject seems to be that if a man find goods that have been actually lost, or are reasonably supposed by him to have been lost, and appropriates them, with intent to take the entire dominion over them, really believing when he takes them that the owner cannot be found, it is not larceny. But if he takes them with the like intent, though lost, or reasonably supposed to be lost, but reasonably believing that the owner can be found, it is larceny. "

“In applying this rule, as indeed in the application of all fixed rules, questions of some nicety may arise, but it will generally be ascertained whether the person accused had reasonable belief that the owner could be found, by evidence of his previous acquaintance with the ownership of the particular chattel, the place where it is found, or the nature of the marks upon it. In some cases it would be apparent, in others appear only after examination.

관련 법: 잃어버린 것으로 추정되는 물건을 발견하고 취하더라도 합리적으로 본 주인을 찾을 수 없다고 실제로 믿었다면 절도가 아니라는 것 입니다.

반대로 주인을 찾을 수 있다고 믿었다면 그것은 절도 입니다.

이 법을 적용하면 미묘한 문제가 발생 할 수 있습니다. 피고가 실제로 실제소유자를 찾을 수 있다는 합리적인 믿음을 가지고 있었는지 의 여부가 이슈가 될 수 있습니다.

“It would probably be presumed that the taker would examine the chattel as an honest man ought to do, at the time of taking it, and if he did not restore it to the owner, the jury might conclude that he took it, when he took complete possession of it, animo furandi. The mere taking it up to look at it, would not be a taking possession of the chattel.

"To apply these rules to the present case: the first taking did not amount to larceny, because the note was really lost, and there was no mark on it or other circumstance to indicate then who was the owner, or that he might be found, nor any evidence to rebut the presumption that would arise from the finding of the note as proved, that he believed the owner could not be found, and therefore the original taking was not felonious : and if the prisoner had changed the note Or otherwise disposed of it, before notice of the title of the real owner, he clearly would not have been punishable; but after the prisoner was in possession of the note, the owner became known to him, and he then appropriated it, animo furandi, and the point to be decided is, whether that was a felony.

길에서 주은 물건을 주인이 누구 인지 알아 보기위해 그것을 가져 가는 것은 그것을 불법적으로 소유한 것이 아닙니다. 따라서 현제의 경우에 적용하면 피고가 수표를 가져 간 것은 larceny 에 해당 하지 않습니다.  그러나 피고가 다음날 주인이 누구인지 알게 되었지만 그는 그것을 사용 했습니다. 과연 이것을 어떻게 생각 해야 할까요?

Upon this question we have felt considerable doubt. If he had taken the chattel innocently, and afterwards appropriated it without knowledge of the ownership, it would not have been larceny, nor would it, we think, if he had done so, knowing who was the owner, for he had the lawful possession in both cases, and the conversion would not have been a trespass in either. But here the original taking was not innocent in one sense, and the question is, does that make a difference? We think not : it was dispunishable as we have already decided ; and though the possession was accompanied by a dishonest intent, it was still a lawful possession and good against all but the real owner, and the subsequent conversion was not therefore a trespass in this case more than the others, and consequently no larceny. We, therefore, think that the conviction was wrong."

법원은 유죄판결이 잘못 되었다고 판단 했습니다.

그것은 여전히 합법적인 소유 였으며 실제 소유자를 제외한 모든 사람에 대한 선이었고, 따라서 이후의 불법적인 사용만으로 절도죄로 처벌 할 수는 없기 때문입니다.

피고의 유죄 판결이 기각 되었습니다. 소유자를 찾을 수 없는 분실 재산으로 여겨지는 것을 자신의 것으로 사용하는 것이 “절도는 아닙니다.”

코맨트: ASHWELL 케이스와 비슷한 팩트가 있다고 생각 합니다. 차이점 이 있다면 이번 케이스는 피고가 수표를 획득 했을 때 주인이 누구였는지 몰랐다는 사실 명백한 경우 이고 Ashwell 에서는 돈을 빌렸을 때 돈의 액수에 대하여 몰랐다고 주장 되었던 경우 입니다. 하지만 C.J. 콜리지경은 액수를 발견할 즉시 돈을 불법적으로 사용 하기로 마음 먹었다면 액수에 대하여 알게된것이 언제인지는 중요하지 않으며 절도로 판단 했습니다. 따라서 단순화 해서 생각 하면 전자는 주인이 누군이 몰랐을 경우이고 후자는 주인이 누군이 알았을 경우라 할수 있습니다.

[No counsel appeared.]

In R. v. Glyde (L. R. 1 C. C. R. 139), the prisoner found a sovereign on the highway, believing it had been accidentally lost. Knowing he was doing wrong, he at once made up his mind to keep it, whether he found out who had lost it Or not, and, on the owner being soon afterwards discovered, he refused to give it up. There was no evidence to show that the prisoner believed he could find the owner at the time he found the sovereign, and it was held, on the authority of R. v. Thurborn, that he was not guilty of larceny.

“If," however, " a person picks up a thing, and knows that he can immediately find the owner, but, instead of restoring it to the owner, converts it to his own use, this is felony." (Per Parke, B., in R. v. Pope, 6 C. & P. 346. Where, for instance, a gentleman left a trunk in a hackney coach, and the coachman, instead of restoring it to the owner, detained it, opened it, destroyed part of the contents, and borrowed money on the rest, this was held to be larceny ; for the coachman must have known where he took the gentleman up and where he set him down, and ought to have restored his trunk to him. (R. v. Wynne, 2 East, P. O. 664; and 1 Leach, 1 C. C. 413.)

In order, however, to convict the finder of property of larceny, it is essential that there should be evidence of an intention to appropriate the property at the time of finding. If at that time his intentions were honest, his subsequently altering his mind and deciding to keep the chattel, no matter who might be the owner, would not make him legally a thief. (R. 2. Christopher, 28 L. J. (M. C.) 35.)

A servant indicted for stealing bank notes, the property of her master, in his dwelling-house, set up as her defence, that she found them in the passage, and, not knowing to whom they belonged, kept them to see if they were advertised:-Held, that she ought to have inquired of her master whether they were his or not; and that not having done so, but having taken them away from the house, she was guilty of stealing them. (R. v. Kerr, 8 C. & P. 176.)

If a bureau is delivered to a carpenter to repair, and he discovers money in a secret drawer of it, which he unnecessarily as to its repairs breaks open, and converts the money to his own use, it is a felonious taking of the property, unless it appears that he did it with intention to restore it to its right owner. (Cartwright v. Green, 2 Leach, C. C. 932.)

A person purchased, at a public auction, a bureau in which he after- wards discovered, in a secret drawer, a purse containing money, which he appropriated to his own use. At the time of the sale no person knew that the bureau contained anything whatever:-Held, that if the buyer had express notice that the bureau alone, and not its contents (if any) was sold to him; or if he had no reason to believe that anything more than the bureau itself was sold, the abstraction of the money was a felonious taking, and he was guilty of larceny in appropriating it to his own use. But that if he had reasonable ground for believing that he bought the bureau with its contents (if any) he had a colourable property, and it was no larceny. (Merry v. Green, 10 L. J. (M. C.) 154.)

Where a box of plate was brought up from the bottom of the river by ballast heavers while engaged in their ordinary business, and the contents were disposed of by them, it is a question for the jury whether, under the circumstances, they had sufficient means of discovering the owner, Or had wilfully abstained from making any endeavours towards such discovery, to constitute a larceny. (R. v. Scully, 1 Cox, C. C. 189.)

A person finding property which has no mark upon it by which the owner can be traced, is yet guilty of larceny, if he appropriates it to his own use, without making inquiries on the subject, unless he has fair reason to believe that the property has been abandoned by the owner. (R. v. Coffin, 2 Cox, C. C. 44.)

Other cases on this subject are: -R. v. Preston, 5 Cox, C. C. 390; R. u.

Yorke, 3 Cox, 0. 0. 181; R. v. Deaves, 11 Cox, C. C. 227; R. v. Mole, 1

0. & K. 417; R. v. West, 6 Cox, C. C. 415; R. v. Moore, 8 Cox, C. C. 416;

R. v. Peters, 1 C. & K. 245; R. v. Knight, 12 Cox, C. C. 102; R. v. Dixon,

7 Cox, C. C. 35; R. v. Gardner, 9 Cox, C. C. 253; R. v. Pierce, 6 Cox,

C. C. 117.

Larceny by a Bailce. Bail

R. v. WYNN. (1887) [68]

[16 Cox, C. C. 231.]

This was a case reserved from the Lewes Assizes by Field, J. The prisoner, a travelling watchmaker, on two separate occasions received from different persons watches which he was to repair. One of the watches was pledged by the prisoner in November, 1886, and the other before Christmas in that year. Upon pledging the first watch the prisoner stated that he only wanted the money for which he pledged it temporarily. And upon pledging the second watch he requested the person with whom he pledged it not to part with it, as it was not his property. Upon an indictment under 24 & 25 Vict. c. 96, s. 3, for the fraudulent conversion of the watches by the prisoner while a bailee thereof, the Court of Crown Cases Reserved held that there was some evidence of a fraudulent conversion, i.e., an intention on the part of the prisoner to deprive the prosecutors permanently of their property, there being no evidence that any effort had been made by the prisoner to redeem the watches; and he never having shown any intention, beyond the statements referred to, of so doing.

휴대용 시계수리공인 피고는 두 사람으로부터 수리해야 할 시계를 받았습니다. 하자만 그는 시계를 담보로 잡았고 시계를 주인에게 되돌려 주지 못한 것으로 보입니다.   

Lord Coleridge, C. J., said: " I am of opinion that in this case the conviction should be affirmed. It is the case of a man who has on two separate occasions within the space of two months had two watches delivered to him under substantially similar circumstances by two different persons. Now, the possession of the watches was no doubt in the first instance obtained in a perfectly legal manner, the watches being in each case delivered to him for the execution of repairs, and the pledging of the watches in neither case taking place immediately. My brother Field told the jury that the prisoner was a bailee of the watches, and the question is, whether the case was within the statute. The jury found that the prisoner had on both occasions fraudulently taken or converted the watches to his own use, and found a verdict of guilty on both charges. A doubt occurred to my learned brother whether there was reasonable evidence that the taking or conversion was fraudulent. Now, if the taking or conversion was fraudulent, the case is clearly within the words of the statute; but, if it was not fraudulent, and the watches were pledged with an honest intention of redeeming them, it would be a different case. That, however, is not this case, for the jury have found that at the time the watches were pledged the prisoner did so with the intention of converting them to his own use and the only question which we have to decide is, whether there was any evidence to support such finding. It seems to me that the very circumstance of there being two cases, and of the second case being separated from the other by an interval of only two months, was evidence that the man was doing what was fraudulent. There might have been circumstances which would have tended to negative a fraudulent intention, but there was no such evidence; and I am therefore of opinion that there was some evidence of a fraudulent taking or conversion, and that the conviction must therefore be affirmed."

C. J. 콜리지

시계의 소유권은 의심할 여지 없이 완벽하게 합법적인 방식으로 획득되었고, 담보는 즉시 이루어지지 않았습니다.

하지만 심원단은 피고가 두 경우 모두 부정하게 시계를 자신을 위해 사용 했다고 판단하고 유죄 평결을 내렸습니다.

배심원단은 시계를 담보 잡을 당시 피고가 부정한 의도를 가지고 있었다고 판단 했습니다.

사기 의도를 부정하는 증거는 없었습니다. 따라서 유죄 판결에 찬성합니다.

Hawkins, J., said :- “There was clearly a conversion, and the question is, was there a fraudulent conversion? I think there was abundant evidence that there was an intention on the part of the prisoner to part with the watches, and to derive the benefit himself of their conversion."

Hawkins, J.:

사기성 의도가 있었습니까?

나는 피고가 이익을 얻으려는 의도가 있었다는 충분한 증거가 있다고 생각합니다.

Stephen, J., said :- “I am of the same opinion. But for the statute the fact that there was no fraudulent intention on the part of the prisoner when pledging the watches would not have afforded him any protection. Under the statute, however, there must now be a fraudulent intention. Now fraudulent involves a fraudulent conversion: a conversion, that is, with no claim of right, and a conversion with the intention permanently to deprive the owner of his property. The question is, whether there was here reasonable evidence of such a fraudulent conversion; that is, was the pledging a real bona fide pledging with the intention of merely obtaining money temporarily, or with the intention of taking the pledge out of the power of the owner? I agree with the observations of my brother Hawkins as to that; and it is therefore unnecessary for me to say more than that the conviction must be affirmed."

Stephen, J.:

저도 같은 의견입니다.

즉, 담보는 단순히 일시적인 선의의 담보 였습니까, 아니면 시계 소유자에게서 시계를 빼앗으려는 의도였습니까? 나는 Hawkins의결정에 동의합니다. 그러므로 유죄 판결이 동의 합니다.

[No counsel appeared.]

The mere fact of a bailce pawning the goods committed to his care is not of itself enough to bring him within 24 & 25 Vict. c. 96, s. 3. It is necessary for the prosecution not only to show a conversion--see Syeds v. Hay, 4 T. R. 260; and Wilbraham V. Snow, 2 Saund. Rep. 47-but also a fraudulent conversion, and the jury might possibly think, under the circumstances of any particular case, that although the prisoner had acted wrongly and foolishly, yet that he had had no intention to deprive the owner altogether of his goods.

The case of R. v. McDonald (15 Q. B. D. 323) shows that an infant may be guilty of larceny by a bailee. In this case the prisoner was a young fellow of eighteen or nineteen, who was supplied with a quantity of furniture, under a hiring agreement, by Mr. Brown, draper and furniture broker, of Torquay. After paying three or four of the installments as required, the young man fraudulently removed and sold the goods. It was held that, notwithstanding his infancy, he was rightly convicted of larceny by a bailee, under 24 & 25 Vict. c. 96, s. 3.

“It seems to me," said Lord Coleridge, C. J., 6 6 that undoubtedly the prisoner, though a minor, had the special property in, or right of possession of, these goods which was contemplated by those who framed this enactment when they used the term 'bailee'; that, having such special property, he proceeded to abuse it and fraudulently to convert the goods to his own use; and that he is therefore guilty of the offence created by the section. He is guilty of the offence, not because he has broken a contract, which he was incapable of making, but because, being capable of becoming a bailee of these goods, and having become one, he dealt with the goods in such a manner as by the terms of the Act to render him guilty of the crime of larceny."

A married woman may be a bailee within the meaning of 24 & 25 Vict. C. 96, s. 3. (R. v. Robson, L. & C. 93.)

In R. v. Wilson (5 Q. B. D. 28), it was held that since the passing of 37 & 38 Vict. c. 62 (the Infants' Relief Act, 1874), an infant could not be convicted of appropriating any part of his property, 6 C which ought by law to be divided amongst his creditors," where the debts proved against his estate were only trade debts, and it did not appear that there were any debts for necessaries supplied to him.

A stockbroker who ignores the written instructions of his principal to buy certain a stock, and appropriates a cheque enclosed in the letter, may be convicted under 24 & 25 Vict. c. 96, s. 75. (R. v. Cronmire, 16 Cox, C. C. 42.)

Other cases on this subject are :-R. v. Hassall, L. & C. 58; R. v. Hoare, F. & F. 647 ; R. v. Garrett, 2 F. & F. 14; R. v. Richmond, 12 Cox, C. C. 495; R. v. Aden, 12 Cox, C. C. 512; R. v. Oxenham, 46 L. J. (M. C.) 125; R. v. Tonkinson, 14 Cox, C. 0. 603.

Persons Employed to Sell appropriating Money Received.

R. v. DE BANKS. (1884) [69]

[13 Q. B. D. 29; 15 Cox, C. C. 450.]

The prosecutor gave a mare of his into the care of the prisoner, telling him that it was to be sold on the next Wednesday at Chester Fair. On that day the prosecutor did not go himself to sell his mare, but sent his wife, who went to where the prisoner was, and saw him ride the mare about the fair, and sell her to a third party, and receive on such sale some money. The prosecutor's wife after such sale asked the prisoner to give her the money, saying she would pay his expenses. This the prisoner declined to do, and eventually he absconded with the money and without accounting. The Court of Crown Cases Reserved held that there was evidence that the prisoner was a bailee of the money thus paid to him, and that the conviction could be supported.

원고는 피고에게 말을 팔아 달라고 부탁 했습니다. 원고가 판매에 직접 참여 할 순 없었지만 그의 아내를 피고와 같이 보냈습니다. 판매 장소에서 판매가 이루어진 후 원고의 아내는 피고에게 판매 대금을 돌려 줄 것을 요구 했고 피고는 지불하기를 거절하고 도주 했습니다. 이에 법원은  

피고에게 지불된 돈이 수탁금이라 판단하고 피고에게 유죄 판결을 내렸습니다.

Lord Coleridge, C. J., said : " The question which we have to consider is not whether the prisoner was a servant and embezzled, but whether there was evidence to justify a conviction for larceny. Probably, the prisoner was entrusted with the horse for sale: the jury have so found, and the evidence of the prosecutor would seem to show that that finding was correct. He was then to sell the mare, and to receive the money derived from such sale, and then to hand it over to the prosecutor or to his agent, who, in this case, was his wife. It seems to me, that as soon as the prisoner had sold the mare, the wife was entitled to the money: and being asked by the wife for the money, he became bailee of the money, and was guilty of larceny of that money of which he was bailee."

[No counsel appeared.]

C. J. 콜리지

문제는 피고가 횡령했는지 여부가 아니라 절도를 했는지 여부입니다. 피고가 말을 팔고 판매에서 얻은 돈을 받은 다음 원고나 그의 대리인 (그의 아내) 에게 주어야 했습니다. 피고가 말을 팔자마자 (그리고 원고의 아내가 돈을 요구하자마자) 그 판매금액은 수탁금이 되었고 그는 수탁금을 절도한 죄를 지었습니다.

The judges expressed their sense of the difficulty of the case, and Mr. Justice Stephen dissented, saying, "My view is, that the man who has been convicted was not the bailee of the money. I think he received the money with no obligation to return the identical coins, and that the present case is governed by R. v. Hassall." (L. & C. 58.)

In Hassall's case, it may be remarked -the case of " money club" at Sheffield -it was held that the bailment intended by 20 & 21 Vict. C. 54, S. 4, 1S a deposit of something to be returned in specie, and therefor that a person with whom money has been deposited, and who is under an obligation to return the amount, but not the identical coins deposited, is not bailee of the money within the meaning of the section.

In the case of R. v. Tonkinson (14 Cox, C. C. 603), the prosecutor advanced money to the prisoner, a solicitor's clerk, upon the deposit of a deed conveying the equity of redemption to the prisoner in a house of his own, and, subsequently, he obtained a legal mortgage from him as security for the sums so advanced. The prisoner then obtained from the prosecutor the deed conveying the equity of redemption on the representation that he had found a person who would take a transfer of the mortgage. The prisoner then obtained 1407. from another person on the deposit of that deed with him, without notice of the prosecutor's mortgage, and appropriated the money to his own use. The judge at the trial directed the jury that the prisoner was a bailee of the deed, and the jury found that he had fraudulently converted it to his own use. The Court of Crown Cases Reserved held that the direction was right, and that the prisoner was properly convicted of larceny as a bailee.

Larceny by Trick.

R. v. BUCKMASTER. (1887) [70]

[20 Q. B. D. 182; 16 Cox, C. C. 339; 57 L. T. Rep. N. S. 720; 57 L. J.

(M. C.) 25.]

The prisoner, a professional betting man, carrying on his business under the name of " Griffiths the Safe Man," was at Ascot races offering to lay odds against different horses. He made a bet with the prosecutor, laying odds against a horse named " Bird of Freedom," and the money for which the prosecutor backed the horse was deposited with the prisoner. The prosecutor admitted that he would have been satisfied if he did not receive back the same coins. The horse won, but the prisoner went away with the money. Later in the afternoon the prosecutor saw the prisoner on another part of Ascot Heath, and demanded his winnings. The prisoner was convicted of larceny, and on the question being reserved as to whether there was any evidence to be left to the jury, the Court for Crown Cases Reserved held, that as it appeared that the prosecutor parted with his money with the intention that in the event of the horse winning it should be repaid, while the prisoner obtained possession of the money fraudulently, never intending to pay it in any event, there was no contract by which the property in the money could pass, and therefore there was evidence of larceny by a trick.

배팅 사업을 운영하는 피고는  Ascot 경주에서 배팅을 제안했습니다. 원고는  피고의 제안대로 배팅을 했고 원고가 돈을 피고에게 맡겼습니다. 배팅을 한 말이 이겼지만 피고는 돈을 주지 않았습니다. 만약 배팅한 말이 경주에서 졌다면 돈을 포기 했겠지만...  오후 늦게 원고는 부근 다른 지역에서 피고를 보고 돈을 요구했으나 역시 돌려받지 못했습니다... 피고는 절도죄로 유죄 판결을 받았습니다. 법원은 원고가 배팅을 한 말이 이기면 돈을 돌려 받을 것을 의도 하고 돈을 주었으나 피고는 그것을 지불할 의사 없이 부정한 방법으로 돈을 점유 했고 원고가 피고에게 돈을 넘겨준다는 어떠한 계약도 없었기 때문에 속임수에 의한 절도(larceny by a trick) 라고 판결 했습니다.

Ascot location

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“The prosecutor," said Lord Coleridge, C. J., deposited the money with the prisoner not intending to part with the property, for he was to have his money back in a certain event, whereas the prisoner, when he received the money, never intended to give it back in any event. It is true that the prosecutor would have been satisfied if he had received back not the identical coins which he deposited, but other coins of equal value, but that does not show that he meant to part with his right to the money."

C. J. 콜리지

원고는 그 돈을 줄 생각으로 피고에게 맡긴 것이 아닌데 죄수는 돈을 받았을 때 어떤 경우에도 그것을 돌려줄 생각이 전혀 없었기 때문입니다. 원고가 준 돈을 있는 그대로 돌려 받으려고 한 건 아니지만(다른 종류의 가치로 돌려받아도 만족 했을 태지만 ), 그가 돈을 포기 하려고 했던 것은 아닙니다.

[Keith Frith for prisoner.]

This case sets at rest the doubt which had previously existed as to whether a " welsher" could be convicted of larceny. For the prisoner it was ingeniously, but unsuccessfully, contended by Mr. Keith Frith that, if he was guilty of any crime at all, it was of obtaining money by false pretences, and the following dictum of Parke, B., in Powell v. Hoyland (6 Exch. 70), was cited : “If a person, through the fraudulent representations of another, delivers to him a chattel, intending to pass the property in it, the latter cannot be indicted for larceny, but only for obtaining the chattel under false pretences." But, on the other hand, Oliver's case (cited in R. v. Walsh, 4 Taunt. 274), and R. v. Robson (R. & R. 413), were held to be in favour of the conviction.

In the former of these two cases the prosecutor had handed to the prisoner 35l. in bank notes for the purpose of their being cashed, the prisoner, however, intending not to cash them for the prosecutor, but to steal them. “Wherever there is a felonious design," said the Court, € the property, notwithstanding the delivery, is still in the constructive possession of the true owner." In the other case, the facts were somewhat similar to those of the leading case, and the conviction was held right, “because at the time of the taking the prosecutor parted only with the possession of the money."

But where the right of property as well as the possession is parted with by the delivery, there can be no larceny, however fraudulent may be the means by which the delivery of the goods is procured. Vide the leading ease of R. v. Solomons, in which the distinction is shown between larceny by trick and false pretences.

Distinction between Larceny and False Pretences.

R. v. SOLOMONS. (1890) [71]

[17 Cox, C. C. 93.]

In support of an indictment for the larceny of three shillings and sixpence, it was proved that the prisoner had obtained possession of a shilling, and then of half-&-crown, from the prosecutor by means of what is known as the purse trick. That is to say, he had induced the prosecutor to give him a shilling for a purse into which he had dropped three coins, by first showing the prosecutor three shillings, and then making it appear as if he had dropped them into the purse.

피고는 원래절도죄로 기소 되었지만 절도가 아니라 사취죄(False Pretences 사기목적의 거짓진술)로 판명되어 풀려났습니다.

피고는 지갑 속임수로 알려진 방법으로 원고로부터 실링과 헤프크라운을 사취 한 것으로 판명되었습니다. 그는 먼저 원고에게 동전을 보여준 다음, 마치 지갑에 넣은 것처럼 보이게 하고 그에게 같은 동전을 주도록 원고를 유인했습니다.

The British half crown was a denomination of sterling coinage worth 1⁄8 of one pound, or two shillings and six pence (abbreviated "2/6", familiarly "two and six"), or 30 (old) pence. The half-crown was first issued in 1549, during the reign of Edward VI. No half-crowns were issued in the reign of Mary, but from the reign of Elizabeth I half-crowns were issued in every reign except that of Edward VIII, until the coins were discontinued in 1970.

The shilling is a historical coin, and the name of a unit of modern currencies formerly used in the United Kingdom, Australia, New Zealand, other British Commonwealth countries, and Ireland, where they were generally equivalent to 12 pence or one-twentieth of a pound before being phased out during the 1960s and 1970s.

Lord Coleridge, C. J., said : " This case is really upon consideration too clear for me to entertain any doubt about it. Of course, one hesitates to let a man off if he is guilty of a gross fraud, and it is matter for regret to have to let off a man who is really guilty of something. But as long as we have to administer the law we must do so according to the law as it is. We are not here to make the law; and by the law of England, though it is enacted by 24 & 25 Vict. C. 96, s. 88, that a man indicted for false pretences shall not be acquitted if it be proved that he obtained the property with stealing which he is charged in any such manner as to amount in law to larceny, unfortunately the statute stops there, and does not go on to say that if upon an indictment for larceny the offence committed is shown to be that of false pretences, the prisoner may be found guilty of the latter offence. The statute not having said it, and the one offence being a misdemeanour while the other is a felony, you cannot according to the ordinary principles of the common law convict for the misdemeanour where the prisoner is indicted for the felony. Now, the law is plain that, where the property in an article is intended to be parted with, the offence cannot be that of larceny. Here it is quite clear that the prosecutor did intend to part with the property in the piece of coin, and the case is not like any of those cases in which the prosecutor clearly never intended to part with the property in the article alleged to have been stolen. Whether or not the prosecutor here intended to part with the property in the coin does not signify if what he did was in effect to part with it for something which he did not get. I have already said that you cannot convict of false pretences upon an indictment for larceny, and as the offence here was, if anything, that of false pretences, and the indictment was for larceny, it follows that this man must get off upon this indictment. I am, therefore, of opinion that this conviction must be quashed."

Hawkins, J., said: "I cannot myself imagine a clearer illustration of the difference between the offence of false pretences and that of larceny than is afforded by this case. It is perfectly clear that the prosecutor intended to part with the property in the coins, and that being so, the case is clearly not one of larceny."

C. J. 콜리지:

유죄 인 사람을 풀어 주어야하는 것은 유감스러운 일입니다. 하지만 법에 따라 그렇게 해야 합니다.

경범죄(사취죄)로 기소된 사람은 절도죄로 입증된 경우 절도죄로 선고 받습니다. 하지만 절도죄로 기소된 사람이 사취죄로 밝혀지면 사취죄로 선고받지 않습니다. 한 범죄는 경범죄이고 다른 범죄는 중범죄인 경우, 관습법의 일반적인 원칙에 따라 경범죄에 대해 유죄 판결을 받을 수 없습니다.

현 사건에서 원고가 동전을 건네려는 의도가 있었음이 분명하니 동전을 건네려는 의지가 전혀 없는 절도사건과는 다릅니다.

Hawkins, J. :

사취죄(false pretenses)임이 명확 합니다.  원고가 동전을 건네려고 의도 했다는 것은 확실하니 분명히 절도는 아닙니다.

[Slade Butler for the prosecution; Keith Frith for the prisoner.]

This case clearly shows the distinction between the crimes of larceny by trick and false pretences, and should be studied together with R. v. Buckmaster.

Vide, also, R. v. Harvey, - Leach, 167 R. u'. Adams, R. & R. 225 ; R. v, Thomas, 9 C. & P. 741; and R. v. Wilson, S O. &

P. 111.

이 사건은 속임수에 의한 절도(larceny by trick)와 사취죄(false pretences) 구별을 분명히 보여주므로 R. v. Buckmaster와 함께 고려되어야 합니다.

R v Barnard

Assizes

Citations: (1837) 7 Carrington and Payne 784; (1837) 173 ER 342.

Facts

The defendant went into a shop in Oxford wearing a gown which indicated that he was a member of the University. In fact, he was not a member. He did not explicitly say he that was a member of the University, but ordered goods at a discounted price which was only available to members. The defendant was charged with false pretences, a precursor to the modern fraud offence.

Issue(s)

1.    Can a defendant make a false representation by conduct alone?

Decision

The court upheld the defendant’s conviction. Wearing the gown sufficiently represented that he was a member of the University, when he was not.

This Case is Authority For…

A representation can be made purely by conduct: no words need to be spoken.

Other

This case was decided prior to the enactment of the Fraud Act 2006. However, it is likely still of persuasive value in interpreting what is meant by a ‘representation’ under the statutory offence.

Black’s Law Dictionary

FALSE PERSONATION.

The criminal offense of falsely representing some other person and acting in the character thus unlawfully assumed, in order to deceive others, and thereby gain some profit or advantage, or enjoy some right or privilege belonging to the one so personated, or subject him to some expense, charge, or liability. See 4 Steph. Comm. 181, 290.

FALSE PLEA, See Sham Plea.

FALSE PRETENSES.

Designed misrepresentation of existing fact or condition whereby person obtains another's money or goods. People v. Gould, 363 Ill. 348, 2 N.E.2d 324.

Elements of offense include actual fraud, State v. Nuser, 199 Minn. 315, 271 N.W. 811, 812; State v. Mayer, 196 N.C. 454, 146 S.E. 64, 65; assertion of a present or past fact, Slaughter v. Commonwealth, 222 Ky. 225, 300 S.W. 619, 621, 56 A.L.R. 1209; State v. Nuser, 199 Minn. 315, 271 N.W. 811, 812, falsity of representation, State v. Mayer, 196 N.C. 454, 146 S.E. 64, 65; People v. Leaverton, 107 Cal. App. 51, 289 P. 890, 892; intent to cheat and defraud. Commonwealth v. Campbell, 116 Pa.Su- per. 180, 176 A. 246, 250; State v. Johnson, 195 N.C. 506, 142 S.E. 775, 776; knowledge of the falsity, fraud. Couch v. State, 31 Ala.App. 586, 20 So.2d 57, 58; Dennis v. Thomson, 240 Ky. 727, 43 S.W.2d 18, 25; obtaining of property or something of value. State v. Johnson, 195 N.C. 506, 142 S.E. 775, 776; Couch v. State, 31 Ala.App. 586, 20 So.2d 57, 58; perpetration of fraud by means of such false pretenses, State v. Hintz, 200 Wis. 636, 229 N.W. 54, 55; reliance on representation, State v. Howley, 220 N.C. 113, 16 S.E.2d 705, 708, 709; use of pretenses or false representations, Dennis v. Thomson, 240 Ky. 727, 43 S.W.2d 18, 25; State v. Mayer, 196 N.C. 454, 146 S.E. 64, 65.

Other definitions of "false pretenses" include:

False representation of existing fact or condition by which a party obtains property of another, People ex rel. Courtney v. Sullivan, 363 Ill. 34, 1 N.E.2d 206, 208; false representation of existing fact, whether by oral or written words or conduct, calculated to deceive, intended to deceive, and does in fact deceive, whereby one person obtains value from another without compensation, Commonwealth v. Johnson, 312 Pa. 140, 167 A. 344, 345, 89 A.L.R. 333; State v. Alick, 62 S.D. 220, 252 N.W. 644; false representation of existing or past fact calculated to induce confidence on part of one to whom representation is made, and accompanied by or blended with a promise to do something in future, State v. Parkinson, 181 Wash. 69, 41 P.2d 1095, 1097; false representation of existing fact, made with knowledge of falsity, with intent that party to whom it is made should act upon it, and acted upon by such party to his detriment. Griffith v. State, 93 Ohio St. 294, 112 N.E. 1017, 1018; State v. Hathaway, 168 Wis. 518, 170 N.W. 654, 656; State v. Whitney, 43 Idaho, 745, 254 P. 525, 526; Smith v. State, 74 Fla. 594, 77 So. 274, 276; false representation of past or existing fact, made with knowledge of falsity, with intent to deceive and defraud, and which is adapted to deceive person to whom made, State v. Alick,

62 S.D. 220, 252 N.W. 644; false representations and statements, made with a fraudulent design to obtain money, goods, wares, or merchandise, with intent to cheat, 2 Bouv. Inst. no. 2308; false statement made with knowledge of its falsity, which is intended to deceive, and which in fact does deceive, and injury results, Morris Plan Bank of Richmond v. Henderson, D.C.N.C., 57 F.2d 326, 327; fraudulent representation of fact by one who knows it not to be true as is adapted to induce person to whom made to part with something of value, Fisher V. 'State, 161 Ark. 586, 256 S.W. 858. 860; State v. Tanner, 22 N.M. 493, 164 P. 821, 822, L.R.A. 1917E, 849; State v. Luff, 1 Boyce (Del.) 152, 74 A. 1079, 1080; State v. Barr, 63 Idaho 59, 117 P.2d 282, 286; misrepresentation of past fact, knowingly made to induce another to part with his property, People v. Martin, 372 Ill. 484 24 N.E.2d 380, 381, 382; misstatement of fact, Carr V. State, 60 Ga.App. 590, 4 S.E.2d 500, 501; representation of some fact or circumstance, calculated to mislead or deceive, which is not true, State v. Grant, 86 Iowa 216, 53 N.W. 120; Commonwealth v. McKnight, 289 Mass. 530, 195 N.E. 499, 506. A 'false pretense" must be as to an existing or past fact. State v. Neal, 350 Mo. 1002, 169 S.W.2d 686, 689; Commonwealth V. Becker, 151 Pa. Super. 169, 30 A.2d 195, 197. A pretense is the holding out or offering to others something false and feigned. This may be done either by words or actions, which amount to false representations. In fact false representations are inseparable from the idea of a

pretense. Without a representation which is false there can be no pretense. State v. Joaquin, 43 Iowa, 132. Gist of offense of "obtaining money by false pretenses"

is the fraud and deception by the perpetrator, his motive, and the result-the fact that a person was deceived and defrauded. Frazier v. Commonwealth, 291 Ky. 467, 165

S. W.2d 33, 34.

Giving of worthless check is, in itself, "false pretense". State v. Augustine, 114 W. Va. 143, 171 S.E. 111, 113; Laird V. Employers Liability Assur. Corporation, Limited, of London, England, 2 Terry 216, 18 A.2d 861, 862. In "false pretenses" owner intends to part with his property in money or chattel but it is obtained from him by fraud. People V. Santora, 51 Cal.App. 2d 707, 125 P.2d 606, 608.

One distinction between "embezzlement" and "false pretenses" is that in the former case the defendant does not have title to the property, while in the latter, he has.

State v. Serkau, 128 Conn. 153, 20 A.2d 725, 727.

Confidence game distinguished
A "confidence game" is any swindling operation in which advantage is taken of the confidence reposed by the victim in the swindler. It consists of gaining the possession of money or property by means of some trick, device, or swindling operation in which advantage is taken of the confidence of the victim reposed in the swindler. In obtaining money by "false pretenses," the false pretenses used must have been believed and relied on by the defrauded party and been the means of inducing the victim to part with his property. People v. Blume, 345 Ill. 524, 178 N.E. 48, 52.

"Confidence game" is not established by mere proof that property has been obtained by false pretense. Clark v. State, 53 Ariz. 416, 89 P.2d 1077, 1080.

Larceny and false pretenses distinguished

In larceny owner has no intention to part with his property, although he may intend to part with possession, while in false pretenses the owner does intend to part with the property but it is obtained from him by fraud. People v. Shwartz, 43 Cal.App. 696, 185 P. 686, 687. Roberta v. State, 181 Ind. 520, 104 N.E. 970, 971.

In larceny owner has no intention to part with title to and possession of property taken, while in false pretenses he does so intend, but it is obtained from him by fraud. Simmons v. State, 165 Md. 155, 167 A. 60, 64.

Only a very narrow distinction exists between "larceny" and "false pretense"; the character of the crime depending on the intention of the parties. Riley v. State, 64 Okl. Cr. 183, 78 P.2d 712, 716.

The intention of owner of property not to part with title when relinquishing possession of property is vital point to be determined in distinguishing between "larceny by fraud" and obtaining property by "false pretenses". Dob- son v. State, 74 Okl.Cr. 341, 126 P.2d 95, 101.

LARCENY.

Felonious stealing, taking and carrying, leading, riding, or driving away another's personalty, 4 Bl.Comm. 229; People v. Brickey, 346 Ill. 273, 178 N.E. 483, 485; State v. Miller, 170 La. 51, 127 So. 361, 362; with intent to convert it or to deprive owner thereof, Ledbetter v. State, 24 Ala.App. 447, 136 So. 430; Globe & Rutgers Fire Ins. Co. v. House, 163 Tenn. 585, 45 S.W.2d 55, 56; Commonwealth v. Estes, 265 Ky. 186, 96 S.W. 2d 578, 580.

Larceny is fraudulent taking and carrying away of a thing without claim of right, with intention of converting it to a use other than that of the owner, without his consent. Thomas v. Kessler, 334 Pa. 7, 5 A.2d 187, 188; Fitch v. State, 135 Fla. 361, 185 So. 435, 437, 439, 440, 125 A.L.R. 360; Hanes Funeral Home v. Dixie Fire Ins. Co., 216 N: C. 562, 5 S.E.2d 820, 821, 822; receiving possession of personalty with intent to convert it to own use, and with intent of person parting with It to part merely with his possession, Hagan v. State, 76 Okl.Cr. 127, 134 P.2d 1042, 1047, 1048, 1050; taking and removing, by trespass, of personal property which trespasser knows to belong either generally or specially to another, with intent to deprive him of his ownership, State v. Broom, 135 Or. 641, 297 P. 340, 342; State v. Levy, 113 Vt. 459, 35 A.2d 853, 854, and, perhaps it should be added, for the sake of some advantage to the trespasser,-a proposition on which the decisions are not harmonious, .2 Bish.Crim.Law, §§ 757, 758; taking of per- sonalty by fraud or stealth, and with intent to deprive another thereof, Pen. Code Dak. § 580 (Comp.Laws N.D. 1913, §9913 Rev. Code S.D.1919, § 4210); Hughes v. State, 61 Okl.Cr. 40, 65 P.2d 544, 546; Bussart v. State, 128 Fla. 891, 176 So. 32, 33; unlawful acquisition of property with intent to convert to taker's use and appropriation by taker, State v. Smith, 2 Wash.2d 118, 98 P.2d 647, 648, 649; unlawful or felonious taking and carrying away of things personal with intent to deprive rightful owner of it, 4 Steph.Comm. 152; Globe & Rutgers Fire Ins. Co. v. House, 163 Tenn. 585, 45 S.W.2d 55, 56; Bowling v. Hamblen County Motor Co., 16 Tenn.App. 52, 66 S.W.2d 229; wrongful and fraudulent taking and carrying away by one of personal goods of another with felonious intent to convert

them to his own use and make them his own property, or to deprive the owner permanently of his property, without owner's consent, Commonwealth v. Estes, 265 Ky. 186, 96 S.W.2d 578. 580; State v. Savage. Del.. 7 W.W.Harr. 509, 188 A. 738, 739; State v. Delk, 212 N.C. 631, 194 S.E. 94; Hickman v. State, 25 Ala.App. 279, 145 So. 167, 168; wrongful or felonious taking property of another, without his consent and against his will, with intent to convert it to use of the taker, Hammon's Case, 2 Leach, 1089, State v. Boswell, 195 N.C. 496, 142 S.E. 583, 584; State v. Fulks,

114 W.Va. 785, 173 S.E. 888, 889.

Obtaining possession of property by fraud, trick or device with preconceived design or intent to appropriate, convert or steal is "larceny." John v. United States, 65 App.D.C. 11, 79 F.2d 136, People v. Cook, 10 Cal.App.2d 54, 51 P.2d 169. 170; State v. Wisman, 111 W.Va. 183, 161 S.E. 437, 438; Nugent v. Union Automobile Ins. Co., 140

Or. 61, 13 P.2d 343, 344.

Common-law distinctions between obtaining money under false pretenses, embezzlement, and larceny no longer exist in l.Tew York, but all such crimes are embraced within the definition of "larceny." People v. Krumme, 161 Misc. 278, 292 N.Y.S. 657, 660.

Generally, one who unlawfully takes another's personal property, not intending to steal, and afterwards converts it, intending to steal, is guilty of "larceny". Calhoun v. State, 191 Miss. 82, 2 So.2d 802, 804, 805.

Every act of thief in the removal of property is in it- self a complete "larceny". Schultz v. Lainson, 234 Iowa 606, 13 N.W.2d 326, 327, 156 A.L.R. 858.