Court of Appeal
| Date | 01 July 1967 |
| DOI | 10.1177/002201836703100306 |
| Published date | 01 July 1967 |
| Subject Matter | Article |
Court
of
Appeal
INTENT TO STEAL
R. v. Harlow; R. e. Winstanley
S
ECT I ON 8 of
the
Larceny Act, 1916, enacts
that
aperson
is guilty of larceny who "steals, or, with intent to steal,
rips, cuts, severs, or
breaks-(a)
any glass or woodwork
belonging to any building".
To
be guilty of larceny
under
this section, what must one intend to steal?
This
was
the
net
question in these two cases
(1967,2
W.L.R. 702) in which
the
appellants
had
been convicted under
the
section in
the
follow-
ing circumstances.
They
had been found by a police officer in
aderelict house from one of
the
rooms of which they had
ripped up
the
floor boards.
It
was clear from
the
evidence
that
the
accused had removed
the
floor boards in order to
steal
the
pipes which were beneath
them
and
that
they had no
intention of taking
the
floor boards with them.
They
were
therefore convicted of ripping
the
floor-boards with intent to
steal
the
pipes;
but
they appealed on
the
ground that, on
the
proper interpretation of
the
section, they could be convicted
only if it could be shown
that
their intent was to steal whatever
they had ripped, cut, severed or broken.
The
Court of Appeal
accepted it as "abundantly clear"
that
this was the "plain
meaning" of
the
words and
that
the
conviction must therefore
be quashed
..
This
part of
the
Act deals with
the
larceny of particular
objects, and s.8 is primarily concerned with
the
larceny of
fixtures, so
that
it might be said
that
the
Court's interpretation
does in fact give effect to
the
intention of Parliament. One has,
however, some sympathy
with
the
remark made by
Lord
Parker, Cc].
that
"it
may be
that
this is a
casus
omissus
in
the
legislature". Although
the
phrase
"with
intent to steal" does
not require its completion by adding
"the
fixtures ripped
up"
it is part of
the
composite phrase "steals, or with intent to
steal, rips" etc.; and this composite phrase requires an object
-which
object (the fixtures) is supplied in the later part of
the
section.
182
COURT OF APPEAL
RE-INSTATING AWITHDRAWN CHARGE
R.
e. Plain
The
judgment of
the
Court of Appeal in this case (1967,
1W.L.R. 565) opened with an important general pronounce-
ment, namely
that
where alternative charges of larceny and
receiving are made in respect of
the
same accused and
the
same property,
the
proper course will almost invariably be to
allow
both
charges to go to
the
jury, for it is only at
the
end of
the
trial
that
it can be clearly seen into which of
the
categories
the
facts fall.
It
will therefore be only on
the
rarest occasions
that
it will be proper to accede to a request to withdraw one of
the
charges from
the
jury
on
the
ground
that
there is, at
the
end
of
the
prosecution's case, no case to answer on
that
charge.
In
the
instant case,
the
appellant was charged with
the
larceny of the driving licence of a deceased person and also
with receiving it. At
the
end
of
the
case for
the
prosecution,
counsel asked
the
deputy chairman to withdraw both charges
from
the
jury.
The
deputy Chairman ruled
that
it would not
be proper to leave
the
larceny charge to
the
jury, as there
had
been insufficient evidence to establish larceny by
the
appellant;
but, as there was evidence
that
the
licence had been stolen (by
the
deceased man's son), the trial of
the
accused on
the
receiving charge proceeded.
In
the
course of his defence,
the
accused recalled one of
the
witnesses for
the
prosecution. As
the
result of this witness's further testimony,
the
deputy
Chairman reversed his earlier ruling to withdraw
the
larceny
charge from
the
jury
and
the
accused was convicted on
that
charge.
In
proceeding in this way,
the
deputy Chairman relied
on a passage in Archbold's Criminal Pleading (36th Ed., para.
549);
but
the
Court of Appeal declared
that
passage to be too
wide and allowed
the
appeal. Each count in an indictment is
the
equivalent of a separate indictment: it therefore follows
that aruling on a count which is not in
the
alternative means
that
the
count is
"dead
and
finished". Where there are
alternative counts; as in larceny and receiving, it is only where
there is no evidence of larceny by
anyone
that
the
matter
should be withdrawn from
the
jury.
In
Plain's case (supra), therefore,
the
deputy Chairman
should not have withdrawn either count from
the
jury,
but,
having withdrawn
the
larceny count, that ruling was final, so
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