LAW REPORT.

New Zealand Police Gazette, Volume XXXV, Issue 39, 5 October 1910, Page 426

LAW REPORT.

(“ Times Law Reports,” Yol. xxvi, page 589.) [Coubt op Criminal Appeal (Darling, Channell, and Bray, JJ.) —4th July, 1910.] Rex v. Edward Fisher. Criminal Law —Larceny by Trick —False Pretences —Passing of Property. The appellant took two bicycles to an auctioneer and put them in for sale by auction at a reserve price of £2 3s. By a fraudulent arrangement between the appellant and one S., the latter was to bid the reserve price at the auction. S. did so bid, and the bicycles were knocked down to him, but he did not pay the price to the auctioneer. The appellant, taking advantage of the auctioneer’s practice to pay over the money for which an article was sold at the auction before be received the money from the bidder, went to the auctioneer and obtained payment; of the £2 3s. The appellant having been indicted for and convicted of larceny of the £2 35., Held, That the conviction must be quashed inasmuch as the auctioneer having intended to part not only with the possession of, but with the property in, the £2 35., the offence was not larceny. Semble, The offence committed was obtaining the money by false pretences. This was an appeal from a conviction for larceny before Mr. Justice Phillimore at Norwich. The facts sufficiently appear from the judgment. Mr. Gerald Dodson appeared for the appellant ; and Mr. Bingley for the Crown. Mr. Justice Darling, in delivering the judgment of the Court, said that they felt themselves compelled to decide that the conviction must be quashed. The facts were that two men, of whom the appellant was one, the other being a man named Sheen, who had not appealed, went to certain auction-rooms at Wymondnam. The appellant took two old bicycles to the auctioneer and put them in for sale by auction at a reserve price of £2 3s. It appeared that by arrangement between the appellant and Siieen the latter was to bid for the bicycles at the reserve price. He did so, but before he paid the money the appellant went to the auctioneer and, taking advantage of the auctioneer’s practice to pay the money before he received it from the person to whom articles were knocked down, he obtained payment of the £2 3s. The two men then left the place. Sheen never paid the auctioneer, and the whole transaction was clearly a concerted scheme. In these circumstances it had been contended

on behalf of Fisher that he could not properly be convicted of larceny of which he was convicted, although possibly he might have been convicted of some other offence. The Court thought that the distinction between larceny —whether larceny by a trick or simple larceny—and cases of false pretences was very clearly expressed by Lord Chief Justice Coleridge in Reg. v. Russett (8 The Times L.R., 607 ; [1892] 2 Q. 8., 312), where he said:—“When the question is approached it will be found that all the cases, with the possible exception of Rex v. Harvey (1 Leach, 467), as to which there may be some slight doubt, are not only consistent with but are illustrations of the principle, which is shortly this: If the possession of the money or goods said to have been stolen has been parted with, but the owner did not intend to part with the property in them, so that part of the transaction is incomplete, and the parting with the possession has been obtained by fraud —that is larceny. This seems to me not only good law but good sense, and this principle underlies all the cases. If, however, authority be wanted, it is to be found in two cases which we could not overrule without the very strongest reason for so doing ; the first is Reg. v. McKalo (L.R. 1, C.C.R. 125), where Kelly, L.G.8., said. —‘The distinction between fraud and larceny is well established. In order to reduce the taking under such circumstances as in the present case from larceny to fraud the transaction must be complete. If the transaction is not complete, if the owner has not parted with the property in the thing, and the accused has taken it with a fraudulent intent, that amounts to larceny.’ The distinction, in which I entirely concur, is there expressed in felicitous language by a very high authority.” It seemed to them that, having regard to all the cases, the distinction between the two offences —larceny and false pretences—still was as pointed out in the passage he had just read. In Reg. v. Russett Baron Pollock said “My mind has therefore been directed to the facts of the case in order to see whether the prosecutor parted with his money in the sense that he intended to part with the property in it. In my opinion he certainly did not.” Looking at the facts of this case with the same object, the Court could only come to the conclusion that, although deceived no doubt as to what had really happened as to the sale of the bicycles, the auctioneer, through his clerk, did intend to part, not only with the possession of the £2 35., but with the property in that money. They could not hold that this case was taken outside the rule laid down in the passages read from Reg. v. Russett. Therefore there was nothing for it but to say that this case did not fall within the rule which would make it a case of larceny by a trick. The appeal would therefore be allowed. At the same time they desired to add that in their opinion the Legislature might well consider whether it was not time to prevent the occurrence of such a case as this by an enactment analogous to that which provides that where, on the trial of a person indicted for false pretences, the facts established a case of larceny, the prisoner should not be entitled to be acquitted on the ground that the indictment was for false pretences. The Court thought there should be a correlative enactment under which the present appellant might have been found guilty of obtaining by false pretences. That could not he done as the law now stood. Tne Court also desired to say that, taking the view they did, the appellant had never been in peril upon the charge of obtaining by false pretences, and that he ought to be indicted with tne other man Sheen for conspiracy, and counsel should consider whether the appellant should not be indicted for obtaining the money by false pretences.

[Solicitors —Registrar of Court of Criminal Appeal, for the appellant; Director of Public Prosecutions, for the Crown.]