The Queen v Hehir

• Jurisdiction: Ireland
• Judgment Date: 24 June 1895
• Court: High Court of Appeal (Ireland)

The Queen

and

Hehir (1).

Cr. Cas. Res.

DETERMINED BY

THE QUEEN'S BENCH AND EXCHEQUER DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1895.

Criminal law — Larceny — Delivery of chattel under mistake as to its character — Mistake common to both parties — Subsequent fraudulent appropriation.

The prosecutor owed the prisoner the sum of £2 8s. 9d. for work done in his employment. The prosecutor, intending to discharge the debt, handed to the prisoner 9s. in silver and two notes, both of which were believed, alike by prosecutor and prisoner, to be £1 notes. One of these was a £10 note. There was evidence that, after receiving this note, the prisoner discovered its true value, and fraudulently appropriated it to his own use. On this evidence the jury convicted the prisoner of larceny:—

Held by Sir Peter O'Brien, L.C.J., Palles, C.B., O'Brien, Andrews, and Johnson, JJ. (diss. Murphy, Holmes, Gibson, and Madden, JJ.), that the subsequent fraudulent misappropriation of the £10, previously innocently acquired, did not amount to larceny, and that the conviction should be quashed.

Reg. v. Ashwell (16 Q. B. D. 190) considered.

Case reserved by the Lord Chief Baron as follows:—

“At the Assizes for the Munster Winter Assize County, 1894, held at Cork under the provisions of the Munster Winter Assize County Order, 1894, Denis Hehir was tried before me and a common jury for the larceny of ‘Nine pounds sterling, of the goods and chattels of one John Leech’; but during the course of the trial, upon the application of Mr. Bourke, Q C., counsel for the Crown, I allowed the indictment to be amended by striking out the words ‘Nine pounds sterling,’ and substituting therefor the words ‘a ten pound note’ (2).

“Evidence was given that John Leech, the master of the brigantine ‘Uzziah,’ which was then in Limerick, engaged the prisoner, Denis Hehir, to assist in the discharge of the cargo. On the 20th September last, Leech owed Hehir for work done in such discharge, the sum of £2 8s. 9d. For the purpose of paying this sum, Leech on said 20th September, handed the prisoner nine shillings in silver, and two bank notes, each of which both Leech and the prisoner believed at the time to be a £1 note. One of those notes was in fact a £10 note. The prisoner left, taking away the two notes with him. Within twenty minutes afterwards, Leech discovered his mistake, and went in search of the prisoner, whom he found within half an hour after he had given him the notes. Leech told the prisoner that he had given him a £10 note instead of £1. The prisoner alleged that he had already changed both the notes. There was evidence that, at the time when the prisoner first became aware that the note was for £10 (which was a substantial period after it had been handed to him by Leech), he fraudulently and without colour of right, intended to convert the said note to his own use, and to permanently deprive the said John Leech thereof, and that to effectuate such intention the said prisoner shortly afterwards changed the said note and disposed of the proceeds thereof.

Mr. Bourke referred me to The Queen v. Ashwell (1), and The Queen v. Flowers (2).

In order to have an authoritative decision upon the question, upon which the Court for Crown Cases Reserved in England was, in The Queen v. Ashwell (1), equally divided, I left the case to the jury, who found the prisoner guilty, and I reserved for this Court the question hereinafter stated. I allowed the prisoner to remain out on bail to come up for sentence at the next Assizes for the county of the city of Limerick.

I request the opinion of this Court upon the question—‘Whether I ought to have directed a verdict of acquittal by reason of the prisoner not having had the animus furandi when Leech handed him the £10 note?’

C. Palles.”

The case was partially argued in Hilary sittings, and by direction of the Court was re-argued before the full Court at these sittings.

Gerald FitzGibbon, for the prisoner:—

The taking by Hehir was not cum animo furandi if it occurred when he first received the note, and that is the time of the true taking. “The intent to steal must be when it cometh to his hands or possession”; Co. 3 Inst. 47, p. 107. “Furtum non est ubi initium habet detentionis per dominum rei”; Glanv. lib. x. c. 13. “The felonious taking must must be of the possession and not of the property severed from the possession” … “the taking must be actual” … “by taking, and not bailment or delivery, for that is a receipt, and not a taking”; Co. ub. sup. All these point to a manual but not necessarily a conscious taking. The civil law is the same. “Contractatio; id est, rei motio a loco”; Heinecc. Elem. Jur., cited Hawkins P. C., 147. “Qui putavit se rem attingere volente domino non tenetur furti”; Pand. xlvii. 2.12. Reg. v. Mucklow (1), and Reg. v. Danes (2), are directly in point. Hehir had the possession of the note during the interval between receipt and discovery, and could have recovered in trespass against any one taking it from him: Armory v. Delamirie (3). Anyone stealing the note during that time could have been indicted for larceny of the goods of Hehir: 1 Hale, P. C. 507. If Hehir had not the possession during that interval, who had? The note was not lost; Leech could only have had possession through Hehir, which is contrary to Reg. v. Davies (2); and if Hehir had any possession at all during the interval the conviction is wrong. In Reg. v. Middleton (4) six judges put this very point and decided in the prisoner's favour (p. 45); and Pigott, B., took the same view (p. 52). Trespass is a necessary element of felony: (Hawk. P. C. 143: Kel. 24). There is no trespass here, for the first taking was certainly not a trespass, nor could the second be, because it would be a taking by Hehir from himself. Therefore, as the first taking was neither a trespass nor a taking cum animo furandi, and as the subsequent discovery was neither a trespass nor a taking, there was nothing to support a conviction.

The prosecutor's proper remedy was an action for £9 money had and received after the changing of the note, or possibly to sue in detinue for the note prior to its conversion; but in the latter case he could only have recovered possession of the note on payment of £1, Hehir having a lien upon it for that sum. If Hehir could lawfully have insisted on changing the note and returning £9, the goods were not the goods of Leech; if he could not, he might have been convicted of larceny if he had changed the note, even though he returned £9. The law of finding does not apply to this case: Reg. v. Davies (1). Even if it did apply, Reg. v. Thurborn (2), R. v. Preston (3), and R. v. Christopher (4) are conclusive against the conviction.

Finally, the taking was not invito domino, for the mere intention to pass the property, though the property does not in fact pass, is sufficient to save the felonious taking: R. v. Adams (5); R. v. Atkinson (6); R. v. Coleman (7); R. v. Jackson (8); R. v. Prince (9). [Gibson, J.: Were not all those cases overruled by Cundy v. Lindsay (10)?] No: for in that case the House of Lords held that there had been no delivery in fact to Blenkarn, and expressly reserved the question of the effect of a mistaken delivery into the hands of a felonious transferee; (per Lord Hatherley, pp. 468–9 and Lord Penzance, pp. 471–2). If the animus furandi can be postponed till the taker has time to appraise the value of the chattel taken, then a thief who ascertains in the daytime that what he took by night is of less value than he then believed, can exonerate himself by returning it to the owner, for ex hypothesi there can be no taking until the value is known, and at that time the hypothetical thief has no animus furandi. The decision in Cartwright v. Green (11) is ruled by the law relating to bailment and breaking bulk. In Merry v. Green (12) there was no delivery in fact of the purse and guineas, of the existence of which both vendor and purchaser of the bureau were unaware, and neither was there in that case any actual manual taking until they were discovered; therefore

that was a true case of finding. In any case these two cases were not decisions of this Court, or of any higher tribunal, and however entitled to respect, must not be allowed to affect the settled rule of law laid down by the Queen's Bench Division in R. v. Mucklow (1) in 1827; followed in Reg. v. Davies (2) in 1856; and recognised in 1882 in Reg. v. Middleton (3).

Bourke Q.C., and Moriarty for the Crown.

The question is, was there a taking and carrying away which constituted larceny. It is contended for the prisoner that the physical taking is what is meant, and that, if that act were innocent, no subsequent fraudulent conversion will amount to larceny. If this were so, a fraudulent appropriation by a servant would not be larceny. The reason why the conversion by a servant amounts to larceny is this: that notwithstanding his physical custody of the article, the legal possession of it remains in his master, and when the servant appropriates it, he takes the article out of that legal possession. It is then the felonious taking out of the legal possession of the owner that is larceny, even though the manual custody of the article have been innocently acquired. If the legal possession remains in the owner, notwithstanding delivery in fact by him, larceny may be committed: Cartwright v. Green (4); Merry v. Green (5). The ratio decidendi of these cases is—that there must be a prior legal possession legally acquired, to prevent a fraudulent misappropriation from being larceny. Did then the delivery in fact of the £10 note to the prisoner transfer the legal possession of it to him? Neither the owner nor the prisoner knew that the piece of paper contained the printed matter that made it a £10 note. There being neither intention...