1784. AICKLES'S CASE. "Croxall shall attend you, and pay you the 25s. agency, and THE Counsel for the prisoner submitted two points to the Mr. Silvester. Mr. Fielding. consideration of the Court: FIRST, That the bill itself ought to have been produced in evidence. SECONDLY, That the facts, admitting them to be true, do not amount to felony. Strange, 1210. Case. THE FIRST POINT. The bill is proved to be in existence, and it is incumbent on the prosecutor to produce it. He might have taken proper measures for this purpose before he had proceeded to trial. If the bill had been lost or destroyed, parole testimony might perhaps have been admissible; but it is a clear and settled principle of law, that parole testimony cannot be given of any existing written instrument (a). SECOND POINT. To satisfy the definition of larceny, as it appears in the works of the most distinguished writers upon Crown Law, the property must be taken from the possession of another. The taking of the property itself, after it is once separated from the legal possession of its original proprietor, can never become a subject capable of supporting the allegation of larceny, especially if that separation be unaccompanied by those ingredients which furnish the idea of a felonious intention. The jurisprudence of the country has adopted a distinction between those acts which are committed animo furandi, and those which are the consequence of artful contrivance; and on this distinction depends the great difference between felony and fraud. The criterion of a FELONIOUS intention is where the act of taking is accompanied by such circumstances as plainly import it to have been by constraint, and against the inclination of the owner. 66 1784. AICKLES'S CASE. 10. c. 13. "Furtum est tractatio rei alienæ fraudulenta animo furandi Glanvil, book INVITO illo cujus res illa fuerit;" but where the mind of the owner is beguiled by the means of some deceitful practice, and under the influence of that deceit he consents, foolishly perhaps but voluntarily, to part with his property, it is evidence of a FRAUDULENT intention; but whether, in such a case, the property accompanies the delivery or not, it will be impossible to build upon such a foundation the notion of larceny, which requires that the goods shall be obtained 17 Hen. VIII. against the owner's consent. In the present case, there pl. 22. is scarcely evidence even of an intended fraud, much less any badge of felony. The prisoner, it is true, first introduced himself to the knowledge of Mr. Edwards, under (a) MR. JUSTICE HEATH, in answer to this objection, said, "I do not think that this rule is so general as to have no exception. If the bill had been in the custody of the prisoner, there would have been no necessity to prove that it was not in existence, but parole testimony might undoubtedly in such case have been given of its contents."See How v. Hall, 14 East's Term Rep. 276. Pulton, 129. 1784. AICKLES'S CASE. a pretence of being able to discount his note, or to get it discounted; for the circumstance of his requiring a premium for his trouble, implies that he was not to discount it himself, and it was perfectly immaterial to Mr. Edwards by which of these means he was to be furnished with the money; but whatever might have been his intention at that time, it was never carried into effect. Almost a month afterwards, the prosecutor makes an application to the prisoner for his assistance, and voluntarily delivers the bill into his hands, upon a trust that he was to receive the money for it. This voluntary delivery gave to the prisoner a free and unrestrained power over it, and enabled him to part with it to any person he pleased; and however the non-performance of his promise to discount it may be construed a breach of trust, or violation of the confidence reposed in him, it excludes every legal idea of felony. A felonious intention must have a certain commencement, evidenced by some overt act denoting that intention; but there is nothing in this case from which it is possible to discover the point at which felony begins. The possession of the note cannot be felony; for he received it by voluntary delivery from the prosecutor. Carrying it home to his lodgings cannot be felony; for to that act the prosecutor consented. Going out to get it discounted cannot be felony; for that act was permitted and assented to by Mr. Croxall. The getting it discounted cannot be felony; for that was the promise which the prosecutor relied upon the prisoner to perform. Nor can his neglecting to return either the money or the bill be considered as felony; for, admitting that he did in fact receive the money, the subsequent conversion of it, pressed perhaps by the importunity of some other creditor, cannot be felony; as it was never in the prosecutor's possession, and therefore cannot be said to have been taken from him. Lord Dyer, page 5, says, "If a man deliver an obligation to another to "receive the money due upon it, and he receives the money upon it, and goeth away therewith, or doth convert it to "his own use, it is not felony (a). So also if a person 66 de (a) See the case of Rex v. Walsh, 4 Taunton, Rep. 258. in which it was determined by the TWELVE JUDGES, on 14th February 1812, that a "liver wares or cattle to another to sell, and he selleth them "and runs away with the money." And Sir William Staundforde, a very accurate writer upon Crown Law, is of opinion, that "if a man deliver to another a bag of money, for the "purpose of paying it to a creditor, or of purchasing any “particular article, and he go away with it, it is not felony, 66 eo que il est hors de possession." LORD HALE also says, "that if A. come to B. and by a false message or token re"ceive money of him and carry it away, it is no felony, "but a cheat, punishable by indictment at common law, or 66 upon the statute 33 Hen. VIII. c. 1. (a).” 1784. AICKLES'S CASE. THESE objections were answered by Counsel on the part Mr. Garrow. of the Crown. 201. FIRST POINT. It is proved that the bill is in the hands of 2 Term Rep. Mr. Smith, who has been served with a subpoena to produce it; and as he has refused to comply, parole testimony may be given of its contents. If it had been in the prisoner's possession, the next best evidence to the bill itself would have been admissible; for as a prisoner cannot be compelled, or even legally required, to produce any evidence which may operate against himself, the next best evidence which it is in the power of a prosecutor to produce, is always admitted ; and in the present case, the possession of Mr. Smith is to be considered as the possession of the prisoner. The principle stock-broker having advised a proprietor of stock as to the proper time of disposing of it, sold the stock for him and received the proceeds; with which the principal instructed him to purchase Exchequer bills; but it being too late an hour on that day, the broker lodged the money with his own banker, and gave the banker of his principal a check for the amount; and on the following day, the principal drew a check on his banker for a larger sum, and gave it to the broker to purchase Exchequer bills; for the amount of which check, the broker received of the principal's banker Bank bills, with a part of which he bought Exchequer bills for his principal, and delivered them to the banker of the principal; and with part of the residue he paid for American stock and foreign coin, which he had previously purchased with intention to abscond, and paid away the rest in discharge of other debts of his own, and absconded; and it was held no felony. (a) And see 30 Geo. II. c. 24. and 52 Geo. III. c. 64. 1784. AICKLES'S CASE. therefore, that parole testimony cannot be given of a written instrument, unless there is a strong presumption previously raised of its being lost or destroyed, is not universal and without exception (a). (a) On the trial of an information in the Exchequer, before MR. BARON EYRE, in December 1772, against one Le Merchand, on 7 Geo. I. c. 21. for importing tea directly into Guernsey, it appeared that the defendant had written several original letters to one Channɛn, a witness on the trial. Channon became a bankrupt, but these letters were proved to have come again into the defendant's possession, by virtue of an order of the Court of Chancery, to deliver to him all letters and papers seized under Channon's commission. The Solicitor of the Excise, however, had contrived to take copies of them whilst they were in the hands of the clerk of the commission. Notice had been given to the defendant to produce the original letters, which he refused to do. The Attorney General therefore offered to read the copies in evidence. It was objected, that being a criminal prosecution, the defendant was not bound by the notice to produce evidence against himself; and therefore the copies could not be read in evidence against him. MR. BARON EYRE thought there was no difference in this point between civil and criminal cases, and he admitted the copies in evidence; not on the idea of the defendant's having, after notice, refused to produce the originals, but because they were the best evidence which the nature of the case would admit of, or that was in the power of the party producing them to give. The verdict turned entirely upon this evidence, and the Jury found for the Crown. On argument for a new trial, the Court discharged the rule.-In Layer's Case, 6 State Trials, 229. for high treason, it was proved that he had shewn a witness the paper, partly doubled up, which contained the treasonable matter, and then immediately put it into his pocket; and no objection was made, though in a case of high treason, to the witness giving parole testimony of that part of the contents of the paper which he had seen. At the Old Bailey September Session 1784, Colonel Gordon was tried for the murder of L. C. Thomas in a duel. The letter from C. Gordon containing the challenge was carried by his servant, and delivered to the servant of C. Thomas. Col. Thomas's servant brought a letter in answer back, and delivered it to Col. Gordon's servant; but it did not appear that the letter was in fact ever delivered to Col. Gordon himself; yet MR. BARON EYRE admitted an attested copy of it to be read against the prisoner; and left it with the Jury as legal evidence, if they were of opinion that the original had ever reached the prisoner's hands. MR. BARON HOTHAM Concurred; but MR. JUSTICE GOULD thought that positive proof ought to have been given, that the original had come into the prisoner's possession, and cited Francis's Case, 6 State Trials. It was |