Court of Criminal Appeal
| DOI | 10.1177/002201836603000104 |
| Published date | 01 January 1966 |
| Date | 01 January 1966 |
| Subject Matter | Article |
Court of
Criminal
Appeal
WITHOUT
THE CONSENT OF THE OWNER
R. v. Millar
IT is an essential factor in larceny
that
the
taking of
the
goods should be without
the
consent of
the
owner (invito
domino).
This
factor is of crucial importance when an owner
sets some kind of
trap
in
the
hope of catching a thief. A
distinction is drawn between those cases in which aservant
of
the
owner, on
the
instructions and with
the
approval and
consent of his master, actually physically hands the goods to
the
accused person, and those cases where in order to catch
the
thieves
the
master instructs his servant to
put
the
goods
or
the
money, as
the
case may be, in a certain place so
that
the
intending thief may take it himself.
How
narrow a line is
drawn
appears when one looks at
the
case of R. v. Williams
(1843, 1 C. &
K.
195).
The
headnote reads: "Overtures were
made by a person to
the
servant of a publican, to induce him
to
join
in robbing his master's till.
The
servant communicated
the
matter to
the
master, and some weeks after,
the
servant,
by
the
direction of
the
master, opened acommunication with
the
person who
had
made
the
overtures, in consequence of
which he came to
the
master's premises.
The
master having
previously marked some money, it was, by his direction,
placed upon
the
counter by
the
servant, in order
that
it might
be taken up by
the
party who had come for
the
purpose.
It
was so taken up by him".
It
appears from
the
facts of the
case
that
the
servant was present and no sooner had he
put
the
money down and removed his hands from it
than
the
accused
had
taken it up,
but
it was held
that that
was larceny, on
the
basis
that
the
servant had
put
the
money down, taken his
hand
off it and
the
accused had taken it away.
The
above-mentioned distinction was applied in R. v.
Millar (49 Cr. App. R. 241) in
the
following circumstances.
The
driver of a lorry transporting bales of woollen rags was
approached by
the
appellants, who suggested
that
for a
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