NOTES OF CASES
| DOI | http://doi.org/10.1111/j.1468-2230.1949.tb00123.x |
| Date | 01 April 1949 |
| Published date | 01 April 1949 |
NOTES
OF
CASES
LARCENY AND
THE
FOBMATION
OF
A
FELONIOUS INTENT
AETEB
TAKINU
POSSEBSIOW
SHORN
of the complicating factor of the respondent’s intoxication,
the facts
of
Rwe
v.
Raact
[l949]
1
All E.R.
898,
are as simple
IUI
the points of law involved are interesting. The respondent
who,
according
to
his
own
evidence, had been drinking
a
quantity
of
beer and rough cider, visited
a
fair
in the evening and,
on
leaving,
took a bicycle which
was
resting against some railings.
He
rode
on it for some two hours, and proceeded with
it
to the house in
which he was staying. Next morning, he was confronted with the
problem of disposing of the bicycle in such
a
way
as
to conceal his
behaviour on the previous evening. He accordingly took it to
the
local railway station and arranged
for
it
to
be
dispatched
to
York
without any intention of collecting
it
at
its destination. The
bicycle was, however, discovered at the railway station, and the
respondent was charged with its theft before the justices by whom
he chose to be tried summarily.
They dismissed the charge on the ground that he was incapable,
by reason of drunkenness, of forming the intention of depriving the
owner permanently of the chattel at the time when he took
it,
but
a
case was stated for the opinion of the Divisional
Court.
The
members of the latter (Lord Goddard
C.J.,
Humphreys and Finne-
more
JJ.)
were doubtful whether
it
can be said
‘
that
a
man who
is able to mount and ride
a
bicycle for two hours is yet
so
incapably drunk that he is unable to apply his mind to the simple
question whether he intends
to
take the machine away for good
or
to borrow and return
it
’
(at p.
400);
but they decided that the
respondent should have been convicted of larceny because, even
if
the taking of the bicycle was not felonious on account of the
absence of the essential intention,
it
was unlawful and became
felonious when the essential intention was manifested on the follow-
ing day. They thus based their decision on the well-known case
of
R.
v.
Riley
(1858)
Dears.
149,
in which the prisoner, who was
held guilty of larceny, inadvertently drove one
of
the prosecutor’s
lambs out of a field with his own flock, and sold
it
on
becoming
aware of
its
existence for the first time.
It
may be observed en passant that
Ruse
v.
Read
serves
as
a
reminder that
Zuori
faciendi
gratia
is not an element
of
the English
definition of theft, but its main interest lies in its affirmation
of
the
doctrine that
‘
if the original possession be wrongful, though not
felonious, and then a man disposes of the chattel animo furandi,
that
is
larceny’ (Dears.
158,
per
Pollock
C.B.).
Some mention
228
APRIL
1949
NOTES
OF
CASES
229
must also be made of the implications of the judgment of the
court, read by Humphreys
J,,
on the law as to possession.
(1)
Trespso
y
possession and
subsqquent felonious intent.
The
decision of the Court for Crown Cases Reserved in
Riley’s
Case
(supra),
was treated as binding on the Divisional Court,
a
point
which may be of some interest
so
far
as the doctrine of precedent
is concerned, and its application, notwithstanding the absence of
any reference to its underlying principle in the Larceny Act,
1916,
may be regarded
as
a
triumph of logic and social convenience over
history and the grammatical interpretation of
a
statute.
It
is
unfortunate that the attention of the court does not appear
to
have
been drawn to
Mr.
J.
W.
C.
Turner’s criticisms of
Riley’s
Case
(Modern Approach to
Criminal
Law,
p.
874),
and that the judg-
ment contains no reference to the reqwrement
of
the Larceny Act,
1916,
that the felonious intent must exist
at
the time of the takbng
ad
currying
away,
but, now that larceny by
a
bailee is punishable
notwithstanding his original lawful possession, it would undoubtedly
be illogical and socially undesirable to allow one whose original
possession was trespassory to go unpunished
if
he subsequently con-
verts the chattel in question animo furandi. Nevertheless, as the
doctrine of
Riley’s Case (Bupr)
is, in the words of Lord Coleridge
C.J.
(16
Q.B.D.
226),
‘extremely technical’, it is important
to
endeavour to appreciate the reasoning upon which
it
is based witb
exactitude.
Unfortunately, two views have been expressed on this subject.
According to the first, Riley took the prosecutor’s lamb on two
occasions, firstly as
a
mere trespasser, and secondly as a thief.
This
is
the interpretation placed on this part
of
the case by
Mr.
Turner, and the decision is thus open
to
the numerous objections
stressed by him, including the point that, by
a
parity of reasoning,
every receiver from the actual thief could
be
convicted of theft
as
a
principal in the first degree
on
the ground that he was
a
participant in
a
joint taking
(op.
cit.,
880-1).
According to the
second view, Riley’s conviction can be supported on the gromd
that the felonious intent manifested by his sale of the lamb can be
related back to the time when he
took
the prosecutor’s lamb by
driving it out of the field (Kenny’s
Outlines
of
Crimitwll
b,
15th ed., p.
244).
The doctrine of trespass ab initio affords Bn
obvious analogy.
Some remarks of Parke B., in
Riley’s
Case
(supa)
oerteinly
lend colour to the first view
:
‘
Being
a
tl.espasser,
the
moment he
took
the lamb with felonious intent
he
became
a
thief’, and he
appears
to
have had in mind the doctrine of continuing trespass
and the procedural fiction that
a
theft committed in one county
continues into the next rather than
the
doctrine of trespass ab
initio. However, the judgment
of
Pollock C.B. only contemplates
one taking, and the second view
at
least has the merit
of
avoiding
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