People (Attorney-General) v Warren [Court of Criminal Appeal.]

JurisdictionIreland
Judgment Date07 July 1945
Date07 July 1945
CourtKing's Bench Division (Ireland)

Court of Criminal Appeal.

The People (Attorney-General) v. Warren
THE PEOPLE (at the suit of the Attorney-General)
and
WILLIAM F. WARREN (1)

Criminal law - Appeal - Embezzlement - Rate Collector appointed by Dublin Corporation - His position under local government law - Whether a "clerk or servant" - Larceny Act, 1916 (6 & 7 Geo. 5, c. 50), s. 17, sub-s. 1 (b).

Criminal Appeal.

The appellant, William F. Warren, was appointed a rate collector by the Dublin Corporation on 12th April, 1939, and his appointment was sanctioned by the Minister for Local Government and Public Health on 2nd May, 1939. He had previously been in the employment of the Corporation for twenty-five years as a clerk.

He was indicted in the Dublin Circuit Criminal Court for embezzlement contrary to s. 17, sub-s. 1 (b) of the Larceny Act, 1916, on four counts charging him, that he, being a clerk or servant to the Dublin Corporation, on four several occasions fraudently embezzled sums of money received by him for, or in the name, or on account of, the Corporation, his employers. He was also charged on two counts with fraudulent conversion.

Counsel for the accused applied to the trial Judge (Judge

Connolly), for a direction on the embezzlement charges, on the ground that the accused was not a "clerk or servant"of the Corporation, it being contended that O'Neill v. Drohan and the Waterford County Council(1) decided that a rate collector was not a clerk or servant.

The trial Judge declined to give such a direction, and left the question of "servant or no servant" to the jury. The jury convicted the accused upon the four counts of embezzlement, and acquitted him on the two counts of fraudulent conversion. The trial Judge imposed a sentence of six months imprisonment on each of the four counts on which the accused had been convicted, the sentences to run concurrently.

Counsel for the accused applied for, and obtained, leave from the Circuit Court Judge to appeal to the Court of Criminal Appeal.

The principal ground of appeal was that the accused was not a clerk or servant of the Dublin Corporation.

Sect. 17, sub-s. 1 (b) of the Larceny Act, 1916, provides:—

"Every person who—

(1) being a clerk or servant or person employed in the capacity of a clerk or servant—

. . . . . . . . .

(b) fraudulently embezzles the whole or any part of any . . . money . . . received or taken into possession by him for, or in the name, or on the account of his master or employer

. . . . . . . . .

shall be guilty of a felony . . ."

A rate collector appointed by the Dublin Corporation was convicted in the Dublin Circuit Court on four counts charging him with fraudulent embezzlement of sums of money received by him for, or on account of, the Corporation, his employers, contrary to s. 17, sub-s. 1 (b) of the Larceny Act, 1916. He appealed, by leave of the circuit Court Judge, to the Court of Criminal Appeal.

Held that the appellant, receiving the payment of the rates in question, was not a servant of the Corporation (it was not contended that he was a clerk.)

Accordingly, although the question "servant or no servant" on a charge of embezzlement is normally a question to be determined by a jury, the appellant stood in such a relation towards the Corporation and the Minister for Local Government and Public Health, under the decision in O'Neill v.Drohan and the Waterford County Council [1914] 2 I. R. 41, 495, as to be entitled to a direction from the trial Judge to the jury for his acquittal on the four counts for embezzlement as a clerk or servant of the Dublin Corporation.

Accordingly, the appeal was allowed, and the conviction set aside.

Cur. adv. vult.

The judgment of the Court was delivered by Gavan Duffy J.

Gavan Duffy J.:—

The appellant appeals, by leave of the Circuit Court Judge, from his conviction on four counts, charging, under s. 17, sub-s. 1 (b) of the Larceny Act, 1916, that he, being a clerk or servant to the Dublin Corporation, on four several occasions fraudulently embezzled sums of money received by him for, or on account of, the Corporation, his employers.

The appellant was appointed a rate collector to the Corporation on 12th April, 1939, and that appointment was sanctioned by the Minister for Local Government and Public Health on 2nd May, 1939; in the opinion of this Court that was the appointment of an officer of the Corporation. The moneys alleged to have been misappropriated were moneys received by the appellant from ratepayers for rates due to the Corporation, and, in the opinion of this Court, were, in the appellant's hands, the moneys of the Corporation.

The appellant's...

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