LAW REPORT.

New Zealand Police Gazette, Volume XXXVIII, Issue 12, 26 March 1913, Page 191

LAW REPORT.

(“Times Law Reports,” Yol. xxix, page 181.)

[Court op Criminal Appeal.—(Ridley, Phillimore, and Bankes, JJ.)— 2oth December, 1912.]

Rex v. Arthur Edwards

Criminal Law Ads of Stealing - Joinder of Persons in One Count — Larceny Act, 1361 (24 & 25 Viet., c 98, s. 5). An indictment contained three counts, of which the first charged one G. with larceny of five sacks of wheat, the second count charged the said G. and one B. with larceny of four further sacks of wheat from the same owner within six months of the first offence, and the third count charged the appellant and one A. with receiving four sacks of wheat belonging to the same owner which had been before then stolen.

Held, That the indictment was bad and must be quashed, inasmuch as thei*jt>sertion of several counts charging different acts of stealing in one indiotment under section 5 of the Larceny Aon, 1861, is only permissible when the several oounts charge the same person. This was an appeal against conviction. The appellant had been tried at Middlesex Sessions on a oharge of receiving, and his sentence had been postponed. Mr. George Elliott, K.G., and Mr. Eustace Fulton appeared for the appellant; and Mr. Purcell appeared for the Grown. Mr. Elliott submitted that the indictment under which the appellant had been convicted was invalid. Mr. Purcell submitted that even if there were a technical flaw in the indiotment no substantial miscarriage of justice had occurred, and the Court ought to uphold the conviotion under the proviso to seotion 4 (1) of the Criminal Appeal Aot. The indictment contained three counts, of which the first charged one Gilbert with larceny of five sacks of wheat, the second charged the said Gilbert and one Brooks with larceny of four further sacks of wheat from the same owner within six months of the first offence, and the third charged the present appellant and one Ashby with receiving four sacks of wheat belonging to the same owner which had been before then Btolen. Mr. Justice Ridley said the indictment was bad, and the conviotion must be quashed. The statute (24 &25 Vic., c. 96 (5) allowed several counts to be inserted in the indictment against the same person for distinct acts of stealing, not exceeding three, committed against the same person within a period of six months, but they must be against the same person. Here one count charged Gilbert alone, and the next charged Gilbert with Brooks, and that; in his opinion, did not satisfy the statute.

The objection was sound on the merits, for the indictment caused serious embarrassment to the defence, even though in fact Brooks was acquitted. In Rex v. John Harris (5 Crim. App. Rep. 285) the Court applied the proviso to section 4 (1) of the Act in a case where an indictment was bad, but there the objection was not taken at the trial. The conviction here must be quashed. [Solicitors: Percy Robinson and Co.; Director of Public Prosecutions.]