1869 The case was argued before Bovill, C.J., Channell and Pigott, THE QUEEN BB., Byles and Lush, JJ. v. FIRTH Manisty, Q.C. (Serjt. Atkinson and Forbes with him), for the prisoner. There was a series of takings of gas, not one continuous act, and the chairman should have directed that the prosecution should be confined to specific takings not exceeding three, under s. 6 of 24 & 25 Vict. c. 96; otherwise the prisoner, if indicted again for the same offence, might find it impossible to defend himself, as he would not know for what act he had been convicted. There was clearly a succession of takings, from the very nature of the acts. The fact that the prisoner took gas on one day does not shew that he took it on the next day, when he may have been absent from the manufactory. [BOVILL, C.J. In Reg. v. Bleasdale (1), where there was an indictment for stealing coal from a mine during a long period of time, the words of Erle, J., are (2): "As long as coal was gotten from one shaft it was one continuous taking, though the working was carried on by means of different levels and cuttings, and into the lands of different people."] There is a distinction between that case and the present. Here the gas which was taken last was not in existence when the takings commenced, and it cannot therefore be said that the gas taken at those two points of time was taken by one act. [BOVILL, C.J. In Reg. v. Shepherd (3) it was held, on an indictment under s. 32 of 24 & 25 Vict. c. 96, that in calculating whether injury to the amount of 57. had been caused to trees, the damage done to several trees might be added together if the acts causing such damage were substantially one continuous transaction.] Maule, Q.C. (with him Hannay), for the prosecution. Authorities are not of much value in determining a point like this. Each case must be regarded with reference to its own nature and all the surrounding circumstances. There was here a continuous flow of gas from the main as long as the decoy pipe remained. There was, therefore, a continuous taking. The fact that the gas was being made from day to day does not affect the question. If water were abstracted from waterworks by a pipe open for a year, there (1) 2 C. & K. 705. (2) 2 C. & K. at p. 767. (3) Ante, p. 118. would be a continuous taking, although the water last taken might not have fallen from the clouds when the abstraction commenced. [He was stopped by the Court.] Manisty, in reply. BOVILL, C.J. [after referring to the form of the objection, and the statement of Serjeant Atkinson (1)]:-The real question in this case is, whether there was a series of takings during the whole number of years during which the gas was used, or whether there was only one continuous taking. Formerly it was necessary that there should be a separate indictment for each act of larceny. The last statute (2), following the principle of a former one (3), allows three different takings to be proved and to be left to the jury. But the only difference caused by this statute is, that three different acts may now be proved on one indictment for larceny, instead of, as formerly, only one. The law which decides whether there are several acts or only one act is the same as before that statute. Before the act is applicable it must be established that there were takings at different times, which can be so calculated that it may be shewn that there is six months from the first to the last of such takings. It is only in these cases that any question arises about election. Before the act, if the taking were continuous, there was only one taking; if there were several takings, the prisoner could only be convicted on one of them. Reg. v. Bleasdale (4) is a clear authority on this point. The fact that the statute allows three takings to be proved on one indictment does not alter the application of the case to the present law. In that case the prisoner was indicted for stealing coal from the mines of a number of different landowners. The taking of the coal had continued for a number of years, and all the coal was taken through one shaft. It was objected for the prisoner, that there were a number of different takings, and that the charge should be restricted to one specified act. Erle, J., as a matter of convenience, confined the charge to the taking from one owner, but he held that the whole taking was one continuous act. There is also Reg. v. Shepherd (5), where the question was, (1) See ante note (1) p. 173. (2) 24 & 25 Vict. c. 96, s. 6. (3) 14 & 15 Vict. c. 100, s. 16. 1869 THE QUEEN V. FIRTH. (5) Ante, p. 118. 1869 THE QUEEN V. FIRTH. whether damage done by the prisoner to a number of trees could be considered as one single act. It was left to the jury, who found that the act was continuous. The prisoner was convicted, and the conviction was affirmed. These are authorities for holding that the taking in the present case was one continuous act. This causes no hardship to the prisoner, but is the view that is most favourable to him, as he cannot now be again indicted for taking any of this gas. This view would dispose of the case, if there were no taking except when the gas was burnt; but really this difficulty does not arise here, because the opening from the main to the pipe was never closed, and the taking was, therefore, in fact continuous. This being so, there is no difficulty in the case; but even if it had not been so, the taking would have been continuous. Many instances might be given besides those already mentioned. Take the case of a granary at a railway station, and a man bringing two waggons close to the granary, and taking sacks from time to time, and extending this taking over four or five days. Here there would be different takings at different times, but it would be impossible to treat the taking otherwise than as one continuous act. Another case might be suggested, of a man at work in a house, stealing, on different days, out of different rooms, and taking one article out f one room, and another out of another, at intervals of a quarter of an hour, or an hour, or longer, all during the same job of work. I should rather suppose that this would be one continuous act, and might be included in one indictment. On principle, therefore, and on authority, I think the conviction was right; and the appeal must be dismissed. Conviction affirmed. Attorneys for prosecution: Williamson & Hill, for Norris, Town Clerk, Halifax. Attorney for prisoner: E. W. Le Riche, for Wavell & Co., Halifax. THE QUEEN v. TYREE. Embezzlement" Clerk or Servant”—Treasurer of Friendly Society-24 & 25 A. was treasurer of a friendly society, whose rules directed that all the moneys of the society should be paid to the treasurer, and that he should make no payments except on an order signed by the secretary, and countersigned by the chairman, or a trustee, and that he should give security. By another rule, all the moneys of the society were vested in trustees. A. was a member of the society, but received no payment for filling the office of treasurer :— Held, on an indictment against A, as clerk and servant of the trustees of the society, for embezzling money which he had received as treasurer, that A. was not the "clerk or servant" of the trustees within s. 68 of 24 & 25 Vict. c. 96. CASE stated by the Assistant-Judge of the Middlesex sessions. William Tyree was tried at the Middlesex sessions on the 6th of January, 1869, on an indictment which charged that he was employed in the capacity of a clerk and servant to S. Young and others, and whilst so employed received 1867. 5s. on the account of S. Young and others, and that he embezzled the said money. The prisoner was prosecuted at the instance of the trustees of a society called The Weymouth Lodge Friends of Labour Loan Society, which had been duly enrolled, and the rules of which had been duly certified by the barrister appointed to certify the rules of savings banks. The prisoner had for two years filled the office of treasurer, and by one of the society's rules the duties of that office were defined as follows:-"That a treasurer shall be appointed, into whose hands all money received on meeting nights, as well as all other money received for or on behalf of this society, shall be paid, and for which he shall sign a proper receipt. He shall be responsible for all money paid to him by the cashier, or any other person for or on behalf of this society. He shall pay no money for or on behalf of this society except by an order signed by the secretary, and countersigned by the chairman or a trustee. He shall give proper securities for the faithful execution of such office or trust, pursuant to the 3 & 4 Vict. c. 110, s. 12, in a bond of 1007." By another rule all moneys of the society were vested in trustees, of whom S. Young was one. The prisoner was a member of the society, but received no salary or payment as treasurer, nor 1869 Jan. 23. were there any fixed periods for his accounting for the moneys received and paid by him. In June, 1868, the prisoner was called upon by the trustees of the society to produce his accounts, and they were examined by an auditor. It appeared that during his office the prisoner had received on account of the society 10,638., and that he had disbursed 10,4487., leaving to be accounted for 1801., or thereabouts. On being required to pay over this sum, he disputed the accuracy of the demand, and stated that his deficiency did not amount to more than 1267. As, however, he did not make any payment whatever, the present charge was preferred. The assistant-judge doubted whether the prisoner could be considered as a clerk or servant, so as to make him amenable for the crime of embezzlement, but, on the authority of Reg. v. Murphy (1), he reserved that question, and took the opinion of the jury upon the facts, directing them to find a verdict of guilty if they were satisfied that the prisoner had failed to pay over the money received by him on account of the society, and had knowingly applied such money to his own purposes. The jury found the prisoner guilty, and judgment was respited. The question submitted to the Court was, whether the prisoner was a clerk or servant or acting in the capacity of a clerk or servant to the trustees of the society, so as to make him, by his misappropriation of the money received by him as treasurer, liable to be convicted of the crime of embezzlement. The case was argued before Bovill, C.J., Channell and Pigott, BB., Byles and Lush, JJ. Ribton, for the prisoner. There are several points of law in the prisoner's favour which appear on the face of the case, although they are not formally submitted for the opinion of the Court. [BOVILL, C.J. We can only decide those points which are reserved for our opinion. That is, in this case, whether the prisoner was "clerk or servant" to the trustees of the society.] The prisoner was not a clerk or servant, but rather in the position of a banker to the society. His duty was to honour cheques of the society duly drawn. All those circumstances which are (1) 4 Cox, C. C. 101. |