sons.

of action whatever could be tried, there would be no benefit to any class of perThe distinction is made that this is a local court; but it is occupied for the benefit of all who choose to become litigants therein, and they cannot be considered as a specific class. Therefore there is no beneficial occupation by the treasurer, nor do any person or persons whom he represents derive any profit from the occupation. That being so, the case is not within the statute of Elizabeth, and no rate can be assessed.

COLERIDGE, J.-I am of the same opinion. It is not important, as the ground of our decision, whether the premises were rateable before, or whether there is a fund from which the rates can be paid. We must look to see whether there is such an occupation as will make any person rateable. The occupation which is suggested is that of the treasurer; and the question is whether he, either by himself or others, has a beneficial occupation of these premises in the ordinary sense of the term. Now,

it is clear that he has not. The liti gants cannot be said to occupy at all. They come and go for the purpose of having their cases decided there. It may be a very good thing for them to have their cases tried there, but that is not what is required. There must be some point in which they receive a pecuniary benefit from the occupation. This distinguishes the case from The Queen v. Harrogate. But besides this, the class benefited is not confined to any limit, because although the use of the building may be chiefly for the benefit of those who reside within the district, yet others residing out of the district may sue these as plaintiffs, or may be made defendants by order of the Judge.

WIGHTMAN. J.-Mr. Pashley has entirely failed in shewing any profit derivable from the occupation of this building. There may be a fund from which the rate would be payable, provided there was such a beneficial occupation as would be liable to be rated.

Order of Sessions confirmed.

Samuel Gill was convicted, at the November Clerkenwell Sessions, 1853, for stealing one crown piece, the property of his master. It was proved at the trial that the master, who was a licensed victualler, suspecting the prisoner, marked the crown-piece in question and two half-crowns, and gave them to one J. W. for the purpose of purchasing spirits of the prisoner, who was the prosecutor's barman. J. W. accordingly, early next morning, purchased at the bar some brandy, and paid the prisoner with the marked money, and it was his duty to have placed the same in the till. When his master came down, he looked into the till and found there the two half-crowns only. Upon the prisoner being charged with the offence, he admitted the receipt of the crown-piece, but said that he had given it away as part of the change for half a sovereign. The crown-piece was found in a bag in his box separate from his other silver, and wrapped in paper. The jury acquitted the prisoner of larceny, and found him guilty of embezzlement. The judgment has been respited, and the prisoner committed to the House of Correction at Coldbath Fields, to abide the decision of this case.

The question reserved for the opinion of the Court was, whether upon the facts proved the offence was larceny or embezzlement.

No counsel appeared for the prisoner.

* Coram Jervis, C.J., Maule, J., Wightman, J., Platt, B. and Williams, J.

Clarkson, for the Crown.-The offence was properly charged as embezzlement. If money be given by a third person to a servant for the use of his master, and the servant keep it, it is embezzlement; but if he appropriate it when he has received it from his master direct, as in The King v. Peck (1), or from a fellow servant who had received it from the master, as in The King v. Murray (2), it is larceny; but where the master gives money to a third party with which to buy goods of his shopman, The King v. Headge (3) is an authority under the old statute, and applicable under the present statute, to shew it to be embezzlement. The principle is this where money passes from a master to the servant, it is never out of the master's possession before the stealing; but where the master gives it to a third person, he parts with the possession, and never expects to see it again.

:

fore my Brother Williams and myself, on an indictment which, after stating that, at the time of committing the offences thereinafter mentioned, the rector of the parish of Tinningley, in the county of York, was desirous of engaging a fit person to fill the place of schoolmaster of the parochial school of that parish, and that the said John Sharman had made application for the said place, and the rector had required from Sharman, for the purpose of satisfying him (the rector), testimonials as to the qualification and character of Sharman, and as to his fitness for the said place of schoolmaster, charged that Sharman, intending by false, fraudulent and deceitful representations to procure himself to be appointed to the said place of schoolmaster, falsely, knowingly, and deceitfully did make, forge, and counterfeit a certain writing, to the likeness and similitude of and as and for a genuine writing of and under the hand of Robert Henry Johnson, the rector of the parish of Lutterworth, in the county of Leicester, with intent in so doing to injure, prejudice, and deceive; which writing was as follows:

"Gentlemen,—Mr. and Mrs. Sharman have been known to me for some years, and for some time they had the charge of a large school under my controul and superintendence, which they conducted with great ability and success; indeed, the committee, parents and children were sorry when they resigned, and some of the latter presented them with some small tokens of their esteem. I have, therefore, very great

Uttering a forged testimonial to character, knowing it to be forged, with intent to deceive and thereby obtain a situation of emolument is a misdemeanour at common law.

Platt, B. stated the subjoined

CASE.

John Sharman was tried, at the last session of the Central Criminal Court, be

(1) 2 Russ. 213.

(2) 1 Mood. C.C. 276.

(3) 2 L. C.C. 1033.

Platt, B. and Williams, J.

excellent moral character and their suitability for the office of instructors to the rising generation, and can, with confidence, recommend them for the situation they seek, knowing them to be peculiarly adapted for the right management of children.

"Nov. 12, 1853."

"W. H. Johnson."

lowing facts-On the 9th of December

last the situation of schoolmaster of the parish school of Tinningley, in Yorkshire, was vacant, and Sharman had applied for it, and had sent in to the rector of that parish papers purporting to be copies of certificates of character, and among them one purporting to be a copy of a testimonial from the Rev. Robert Henry Johnson, the rector of Lutterworth. On the day which had been appointed for the production of the original testimonials Sharman attended for the purpose, in Parliament Street, Westminster, at the office of Mr. Baxter, a parliamentary agent, who had been authorized by the rector of Tinningley to inspect and examine them. On that occasion, being required by Mr. Baxter to produce the original of the writing purporting to be a copy of a testimonial from the rector of Lutterworth, he produced the writing set forth in the indictment; and in answer to Mr. Baxter's question falsely stated that it was the testimonial of the rector of Lutterworth, and bore the rector's signature. In fact, the document had not been written or signed by the rector, but was altogether a forgery. The jury acquitted him of the forgery, but found him guilty of uttering the forged document knowing it to be forged, with intent to obtain the emoluments of the place of schoolmaster and to deceive. Judgment has been postponed, in order to obtain the opinion of the Court of Appeal whether the act of which the jury have found Sharman guilty is an offence by the common law.

No counsel appeared for the prisoner.

Clarkson, for the prosecution.-Forging this false character was an offence indictable at common law-The Queen v. Toshack (1). The fraudulent making or uttering any writing with intent to defraud, prejudice and deceive any person is forgery and a misdemeanour at common law-2 Russell on Crimes, 318. One point here is, that the jury have not found an intention to defraud; they simply find that the prisoner uttered the instrument with intent to deceive.

[WILLIAMS, J.-If the prisoner deceived the prosecutor by means of the forged

(1) 1 Den. C.C. 492.

character with intent to benefit himself, is not that a fraud?]

[JERVIS, C.J. The finding is sufficient.]

The more important question is, whether uttering a forged document (the forging of which is a misdemeanour at common law) is in itself an indictable offence at common law.

[WILLIAMS, J.-The case of The Queen v. Boult (2) gave rise to the doubt in my mind on this point.]

JERVIS, C.J.-The Court is of opinion that it is an indictable offence at common law to utter a forged document, the forging of which is an offence at common law. Conviction affirmed.

[CROWN CASE RESERVED.]

1854. Jan. 28. Larceny-No Proof of Loss of Things

THE QUEEN v. BURTON.

stolen.

The

On the first floor of a warehouse a large quantity of pepper was kept in bulk. prisoner was met coming out of the lower room of the warehouse, where he had no business to be, having on him a quantity of pepper of the same description with that in the room above. On being stopped, he threw down the pepper, and said, “I hope you will not be hard with me." From the large quantity in the warehouse, it could not be proved that any pepper had been taken from the bulk. It was objected that as there was no direct proof that any pepper had been stolen, the Judge was bound to direct an acquittal :-Held, that without such direct proof of a loss, there was abundant evidence to warrant the conviction of the prisoner.

This case was stated by the chairman of the Middlesex Sessions. "John Burton was indicted at the January Sessions, 1854, for the county of Middlesex, for stealing a

(2) 2 Car. & K. 604.

• Coram Jervis, C.J., Maule, J., Wightman, J., Platt, B. and Williams, J.

quantity of pepper. It was proved, on the trial, by the person having the charge of the warehouse, that the prisoner was seen coming out of the lower room of a warehouse in the London Docks, on the floor above which a large quantity of pepper was deposited, some in bags and some loose upon the floor, and that the witness, having suspicion of the prisoner from the bulky state of his pocket, stopped him, and said, "I think there is something wrong about you." Upon which the prisoner turned and said, "I hope you will not be hard with me," and threw a quantity of pepper out of his pocket on to the ground. The witness further proved that no pepper was missed, and that he could not say, from the large quantity of pepper that was in the warehouse, that any had been stolen; but the pepper found on the prisoner was of the like description with the pepper in the warehouse. The prisoner had no business in that warehouse. It was contended by the prisoner's counsel, on the authority of The Queen v. Dredge (1), that upon this state of facts the Judge was bound to direct an acquittal. I overruled the objection, being of opinion that notwithstanding the statement of the witness that he could not swear that any pepper was stolen, there was evidence to go to the jury. The jury returned a verdict of guilty, and the question reserved for the consideration of the Court is, whether I ought to have directed a verdict of acquittal or to have left the case for the consideration of the jury. If the Court should be of opinion that the case ought not to have been left to the jury, a verdict of acquittal is to be entered. Judgment on the conviction was postponed, and the prisoner was committed to the House of Correction at Coldbath Fields."

Ribton, for the prisoner.-The conviction is improper. The presiding Judge ought to have stopped the case, and told the jury that as there was no proof of the loss of any pepper, they could not convict.

In every charge of larceny two things are to be proved: first, that the prosecutor has lost some property; and secondly, that the prisoner stole it. Unless the first point

(1) 1 Cox, 235.

is made out, unless a corpus delicti is shewn by direct and positive evidence, there can be no conviction. Presumptive evidence is insufficient for this purpose, though, when the corpus delicti is once established, presumptive evidence is admissible to denote the party who has committed the offence. The Queen v. Dredge is precisely in point. There the boy had gone into a toy-shop. He was there secreted, and some toys which the owner could swear came from his shop were found on him. The owner could not say whether he had sold those toys or not, nor could he say that he missed any from his shop, as from the nature of his business it was impossible to say what toys he had there. And Erle,

J. said, that as the prosecution had failed to establish the corpus delicti, as there was no proof that any toys had been stolen, the boy must be acquitted.

[JERVIS, C.J.-I doubt whether it was intended to lay down any principle of law in that case. e.]

[MAULE, J.-In that case the child conducted himself as a perfectly honest person. The prisoner here behaved like one who had done wrong. The child was in a shop where he had a right to go. Here the prisoner was where he had no right to be. There the boy stood on his right and stuck to the property. Here the prisoner says, "do not be hard upon me," and throws the things down.]

There was no confession on the part of the prisoner; or even if there were, it would probably not be sufficient-Taylor on Evidence, 583; there was merely presumptive evidence at the highest. It is, in fact, only a case of suspicion.

[MAULE, J.-A father and two sons were some time ago indicted before me for stealing from their employers a quantity of shoes and materials for making shoes. The prosecutors said that their stock was so large that they could not say that they had missed any one of the articles alleged to have been stolen; but they were convicted and transported. According to your view I ought to have let them off.]

[WIGHTMAN, J.-If it be necessary in all cases to prove that some one had lost the property, how would you manage in cases

of indictments for stealing property belonging to a person unknown?]

If the prisoner be seen taking the property from a person unknown, he may be convicted, for there would be direct and conclusive proof of the corpus delicti.

[MAULE, J.-Where do you find the rule that the corpus delicti must be strictly and conclusively proved?]

In 2 Starkie on Evidence, 710, tit. 'Murder,' ed. 1842, citing 2 Hale, P.C. 290, the rule is laid down that in cases of murder "proof should be given of the death, by evidence of the fact or the actual finding of the body," before circumstantial evidence can be admitted to charge any individual with the crime. The same principle must apply to all crimes.

[MAULE, J.-Lord Hale lays down the rule as a rule of caution and prudence in cases of murder and manslaughter,. You differ from Lord Hale, and say that it is an absolute rule of evidence, applicable to all cases, from murder to petty larceny.]

In Evans v. Evans (2) Lord Stowell "It has been asked, and very prosays, perly asked: do not Courts of justice admit presumptive proof? do you expect ocular proof in all cases ? I take the rule to be this, if you have a criminal fact ascertained, you may then take presumptive evidence to shew who did it, to fix the criminal, having, then, an actual corpus delicti. Shew me in this case that a crime has been committed and I shall not be at a loss to fix the criminal; but to use presumption in order to swell an equivocal fact, an act that is absolutely ambiguous in its own nature, into a criminal fact, is a mode of proceeding of a very different nature, and would, I take it, be an entire misapplication of the doctrine of presumption.'

[MAULE, J.-There Lord Stowell was a judge both of the fact and the law. He was in the situation of a foreman of a jury explaining the course of his reasoning on the facts.]

So the Judge here was a judge of fact so far as to say whether there was any evidence of the corpus delicti.

Clarkson, for the Crown, was not heard.

(2) 1 Hag. Cons. 35, 105.

Embezzlement-Servant receiving Money, not for his Master, but for another Party.

W. engaged with a railway company to find horses and carmen to deliver the company's coals. He also contracted that he or his carmen should day by day duly account for and deliver to the company's coal manager all monies received from customers in payment of coals. The delivery notes and receipted invoices of the coals were handed to W.'s carmen by the company's officers. The delivery notes were entered by W. in his book, the receipted invoices given to the customers. The prisoner was a servant of W. and was employed by him in the delivery of coals of the company. It was the prisoner's duty to pay over direct to the clerk of the company any money he might receive from customers. Such monies

never formed items of account between W. and the company. The prisoner appropriated to his own use a sum of money which he had thus received in payment for some of the company's coals delivered by him as servant of W:-Held, by a majority of the Judges, that these facts shewed that such a privity existed between the prisoner and the company as to make the latter the company's agent to receive the money and to pay it over to them; that the money could not be considered as money received on account of W, but on account of the company, consequently that the prisoner could not be indicted as W.'s servant for embezzling W.'s

money.

* Coram Lord Campbell, C.J., Parke, B., Alderson, B., Coleridge, J., Maule, J., Wightman, J., Cresswell, J., Platt, B., Williams, J., Martin, B. and Crompton, J.