LAW REPORT.

New Zealand Police Gazette, Volume XXXV, Issue 50, 21 December 1910, Page 537

LAW REPORT.

[ln the Court oe Appeal.] Bex v. Muir. (“N.Z. Law Reports,” Vol. xxix, page 1049.) Criminal haw Theft Larceny by a Trick False Pretences. A by means of a trick obtained possession of and converted to his use the property of B, who did not intend to pass the property to A. Held by the Court of Appeal {Stout, C.J., and Williams , Edwards , Cooper, and Chapman, JJ.), That A was rightly convicted of theft under the Crimes Act, 1908. Case stated by Cooper, J., for the opinion of the Court of Appeal under sections 442 and 443 of the Crimes Act, 1908. The prisoner was convicted of theft under the following circumstances. He represented to the National Mortgage and Agency Company of New Zealand (Limited), of whom he was an employee, that a person named Kerson had sold to the company certain produce. In addition, he made up bogus returns showing delivery of goods by Kerson, upon which the company made out cheques payable to Kerson and forwarded the same at the request of the prisoner to an address given by him as the address of Kerson. There was, in fact, no such person as Kerson, but the prisoner collected and converted to his use certain of the cheques. The Judge upon the above facts directed the jury to find the prisoner guilty of theft. The main question for the Court’s consideration, and the only one actually dealt with by the Court of Appeal, was whether the offence disclosed was false pretences or theft.

Stout, C.J.:— I am of opinion that the conviction should be upheld. In my opinion it was larceny at common law, and it is not necessary to rely upon the express provisions of the Crimes Act, 1908, as to fraudulent conversion of goods that are lawfully in the possession of a person. At common law, in 2 East’s Pleas of the Crown, there is an illustration of a case where a man gave another man a horse. He gave him that horse to ride to a certain place. The man fraudulently sold the horse and converted it to his own use. He had only a loan of the horse, and had no property in the horse ; and it was held that it could not be said that he was not guilty of larceny. Another case was where a man meaning to discount a bill gave it to another to discount, and that man ran away with the bill and converted it to his own use. It was held that as there was no intention to pass the property in the bill the man was properly convicted of larceny. Another case was where a man asked a letter-carrier for letters he was not entitled to receive. The letter-carrier gave him the letters, and that was held to be larceny, because the lettercarrier had no power to pass the property in the letters except to the person entitled to receive them. In this case what happened was this : the man intended to steal the cheque even before he received the cheque. Therefore it comes within some of the cases that may be cited to show that where there is a prior intention to steal the getting possession is of no moment. Here the man comes and gets a letter not addressed to him. The person who gave him the letter had no business to give him the letter. There was no intention to pass the property to him. The company only intended to pass the property to a person named Kerson. There was no such man named Kerson. Therefore the company never had the intention to pass the cheque to Kerson. I am of opinion that this case comes within Middleton’s case and other cases that may be referred to. Where there is no intention to pass the property, as here, a person is properly convicted of larceny at common law. In this case, however, there is an express mention in section 240 of the Crimes Act, 1908, of fraudulent conversion. We have a new definition of larceny, and we do not need to invoke the idea of a trespass which was the old notion of larceny. Under the provisions of our statute, even if the cheque was in his lawful possession at the time he fraudulently converted it, he was guilty of larceny, for there

was no intention of passing the property to him. It is not a case of false pretences where there was an intention to pass the property. I am therefore of opinion that the conviction should be affirmed.