Henry Clement Solomon & Rex [1923] SLCA 8 (29 January 1923)

84 29th J anuary, ll.BNRY Cl.~KM.EN'£ SOLOMON .clppellant . 1923. v . REX - Respondent. Larcen.IJ as a cle1'!;. and servant-Laying the zJroperty in the correct per.~on-Banlwrs' po.~ition in relation to depositors' funds-Ta/,ing of propert.IJ against will of owner-Intentio n permanently to deprive owner of property . Case stated by Purcell, C.J ., in the Supreme Court o£ the Colony of Sierra Leone. CASE STATED. The Defendant, Henry Clement Solomon, was trie d and con­ '·icted before me sitting with Assessors al the last May Criminal Sessions holden at l~reetown on an Information £or Larceny as a Clerk and Servant . I sentenced the Defendant to nine months' impriso nment with hard labour, and respited judgment pending the decision of the Court o£ Appeal with regat'd to the matters now raised in this special case. '£he material £acts can be summarised as follows: - The Defendant "as l.'mployed by the prosecutor, one Alfred Marcus 'Woods, to superintended his business, which was that o£ a general merchant at llangha, in the Sierra Leone Protectorate, during the Prosecutor's absence in England. In pursuance o£ this arrangl.'ment Defendant proceeded to llangha and took sole charge o£ the :-aid business on the 1st May, 1921, and continued in charge until the month of October, 1921, when Prosecutor returned to Hangha £rom England. It would appear that without the Prosecutor's consent and immediately after his departure £rom llangha, the Defendant opened a ledger account with the Prosecutor's firm, with the result that between 5th ~lay and 6th October he had drawn a snm from the coffers o£ the Prosecutor's business amounting to £357 . 1s. 7d.; and it is io be observed that so far as this transaction is concerned the Defendant paid no money into the credit o£ this account at all . I t appears that in th<' course of his business the Prosecutor had dealings with one Albert Genet-a merchant in 85 .Freetown-who acted as his agent in the sale of produce and who kept a ledger account for the PTosecutor, anti amongst other things acted as his banker. )fr. Genet Terei>ed instructions from the ProsecutDr that the Def<>ndant would be in charge of his business, and that he was to supply tl1e Defendant wi~h any money that he might require, and th<' Defendant was auU1orised by the Pro­ secutor to draw from )Ir. Genet whate>er money was necessaTy to enable l1i m properl~· to C<HJ'Y on the llrosccutor's business dul'ing l1is absence. On the 2nd .fuly, 1921, the Defendant sent the following telegram to :Mr. AlhC'rt Genet, Freetown:- " Solomon to Genet. " Pay ::Urs. Solomon sixty pounds. Third receipt posted "yesterday's t1·ain." .And on the same day he sent lhP following telegram to his wife, 1Irs. Solomon :- " Solomon to :Mrs. Solomon. " Apply Genet receive sixty pounds pay Betts." In pursuance of these instructions )lr. Gene£ paid M1·s. Solomon a cheqne for £GO drawn on his o'm account and signed by him, which cheque she subsequently cashed and the proceeds were used for u private purpose unconnected with the Prosecutor's business. Mr. Genet uebited this sum to the Prosecutor in his ledger ac<"ount, and it was subiiequently paid by the Prosecutor to Genet . The Defendant also debited himself with this sum in the ledger account already referred to, whirh he opened without the Pro­ secutor's knowledge with the Prosecutor's firm. I diredNl the Assessors that if they £ound that the Defendant paid his tlehts out of the Prosecutor's money-without the Prosecuwr's consent and without at such time haYin~ either the inlention or ability to repay such money and without ha>ing any money to hiii rredit witl1 the Prosecutor-t.hat these were facts from which lh<'y migl1t infer an iutent to defraud. I further directed the Assessors that if Defendant by a series of acts-carried out for that express purpose-caused money to be paid by the Prosecutor's agent, which in the ultimate result permanently transferred such money fi'Om the coffers of the Prosecutor lo the coffers of the Defendant, such a transaction would amount to a " taking," and the Defendant could properly bo convicted of larcenY,. The Assessors expressed their opinion that the Defendant wns guilty o£ larcen~·. The Court convicted the Defendant of larceny. SOLOMON v. REx. Sow»oN 11. RJ>X. 86 The question which the Comt of ~\.ppeal is inYited to expres~ its opini on with reg-ard to, i:nvhelher such direction was right and whether in the cirC'um..;tanccs as ~ct out in this »pecial case the Defendant was properly conYictetl o£ larceny. ('\gil. ) G. K. T. PrHCELL, Chief J usiiC"e. TVu.vht toe the Appellaut cifcs: -- Russell on Crimes, pp. 1177, 1178 ()lote ll.), 1207, 1209, 1210, 1280 . ..irchbold, p. ,):36. R. ·v. Prince, L.R. , I.C.C.R., p. 150. E.empson for the Crown cite:,:- R. v . Cook, L .R., I.C.C.R .. p. 295. :ll eDO~~ELL, .\.cting J. Th e whole o£ this case seems to me to hinge upon the question whether the propetty stolen was corredl~· laid in Woods instead o£ Genet.; in other "·on1s whether lhc learned Ch ie£ Justice was correct in his diredion to the .\sses..;ors when he spoke o£ a transfer of money from the cotl'ers of the Prosecutor to the coffers of ])pfendant. The matter, lo use the words of J<:rle, .T., in Reg. v . Smit h (6 Cox 554) i,. '' embanas~ed with that vague,;l o£ all vague " questions, the meaning o£ the word ' possession.' " What is laid dowu in Rex r . Cooke (L .R., I.C.C .R. , at p. 300) is that a servanl has onl:v the charge or custody o.f his master's goods and can be indicted for stealing thin gs in his custody, but in his master's constructive posse~sion, and still remainin g the property of the master. The servant is said to have the physica l , the master the legal , possession of the property concerned . A bailee on the other hand has more than custody or physical possession. His position is that temporarily he has the legal as well as the physical posses­ sion of the goods entrusted to him. Here it is said that " special property " in them alone passes. W hat is the position of a banker? It is clear that the legal and physical possession of money entrusted by a depositor with a banker passes from the former to the latter-does the property also pass? In R eg. v . P rince (ibid., p. 151) where an amount equal to a dep ositor's balance was by a false pretence withdrawn £rom a 87 bank, the Common ~erjeaut con,·icteu the prisoner of larceny, not on the counts la~·ing the ownership in the depositor, but on one of those laying the ownersl1ip in the bank. It is true that the <·on~ictiou was quashed on the ground that the offence was not lareeny but false pretences, but that the Common Serjeant was right in holding that the property was in the bank, and not tlJC dcposilor, appears from the judgments of several of the Judges of thC' Court of Crown Cases Rcsen'cd . Bo~ill, C.J., says: " The cashiers of a bank are the only " persons authori~ed to part with the money of the bank." Blackburn, .J., say;;: " In the present case the cashier holds " the money of the bank with a general authority from the bank " to deal with it." Lush, J ., says: " Tl1e cashier is placed in the bank for the " very purpose of parting with the money of the bank." As laid down as long ago ns 1848 iu Foley 1J. IIill (13 L .J. Uh., p. 182) the reeeipl of money by a banker hom, or on account o£, his customer constitutes him merely the debtor of the customer, he i;; uot a trustee fo1· the customer and the latter has no right to enquire into or question the u~e made of the money by the banker . I n view of these authorities it seems to me fully established that the propert~· was wrongly laid in Woods. If at n. trial it appears that the property ha-; been incorrectly laid, unless the enor be amended Lhe De£enchut must on this technicn.l ground be aequitted . I am of opinion that the accused in this case was not proper ly convicted of larceny. SA. WREY-COOKSO~. J. On a first reading of this case, as stated by the learned Chief Justice, it appeared elear to me that the opinion of this Court was sought as to whether both directions (b<'ginning with the words, " I directed the Assessors " and ending with " could properly be convicted of larceny ") were right or wrong . B ut the learned Chief ,Justice has now pointed out that such was not his intention. but that the onl-v expression of opinion which he desired to ha>e from this Court was to be confined to the points set out in the passa~e: " I further directed the Assessors that " i£ Defendant b;r- a series of acts-carried out for that exp ress " purpose-caused money to be paid by the Prosecutor's agent, " wl,l.ich in thE' ultimate result permanently transferred such SOLOliON v. REX. MODO~~BLL, .ACTI'iO J SOLOMON v. REX. SAWREY· COOKSON, J. 88 " money from th<' eoiYcrs of the Proflecutor to the eo!ters o£ the " D efendant, Stl<'h a transaction would amount to a ' taking ' " and the De£entlnnl cot1ld pro1>erly be convicted of larceny ." ,l'he exact form in which the question thereon is left is as follows:- "\\hctltt•r such direcliou was right :mel "hC'lhC'r in the " circumstaucrs as set out iu this ~'pocia l case Lht' Defen dant "was proped_\' convicted of larc•cny." In turning to those chcumstance.; I find one whirh has 'ery considerable bearing on the question as to whether this conYictio n o£ larceny should be allowed to stand, and it is the simple fact or (·ircumstance that one Albert Ge11et acted as the Prosecutor "'roods' banker, upon whom the Defendant as Prosecutor's servant was entitled to chaw for the purposE's of his master's business. Genet was also authoric;ed "to supply the Defendant with any " money that he might require on Prosecutor's behalf." .\.nother circumstance of tl1e greatest importance is that tl1e sum in connection with whicl1 the charge of larceny was concerned, viz., ,£60, "·as paid over to Defendant's nominee as a result of two telegrams, one sent to the banker Genet and the other to the pet·son (Defendant's wife) named in that tele gram to Genet, instructing her to apply to Genet for that sum. Dealing fir~t with the circumstance that the relationship of banker and customer existed between Woods tmd Genet, it follows on the most ample nuthorit~' that Genet thereupon became me!'ely Wood s' debtor in the eye o£ tl1c law at the time he paid over £60 on Defendant's authority. lie was not handing over 'Voods' money to Defendant. but his own, and that fact in itself woulcl, in m~- opinion, dispose of the C'harge of larceny of Woods ' money by Defendant. But thf're is also the fact that what Genet parted with to Defendant was parte d with in no sense against his will, and need I add that it is essential in larceny tl1at property must be taken by the Defendant from the owner against the will of the owner . In the ''"ords of Blackb urn , J. , i11 R <'gina 1·. Prinre (L.R. 1868. C.C.C.R.. at p. 155), "if " the owner intenderl the propert~· to pass, though he would not " haYe intended had he known the real facts, that is sufficient " to prevent the offence o£ obtaining ano ther's property from "amounting to larceny." Anot her essential ingr edient of " taki ng " in larceny is that there must, at the time of the taki ng, be the intention on 89 Defendant's part permanently to deprive the owner of the property in the goods taken. I cannot find that in the passage I have quoted above that the attention o£ the As~essors was drawn to either of these essential ingredients in a dungc of larceny; but ou U1e contrary they appear to me to have been mere ly directed that if in the circumstances indicated the Defendant was respon,;ible for the passing of money from ,,~oods' account with Genet to his (Defen ­ clnnl',;) nominee, then Defendant wa,;; guilty of " taking " to the extrnt o£ justifying a l'Onviction of larceny o£ Woocb' money. Independently, therefore, of the fact that the money which thus passed was not \\oods' in tl1e eye of the law, I am of opinion that the direction was wron~ (there was non-direction ina~much us the direction did not go far enough), and that, therefore, the Defendant was improperly convicted o£ larceny. PURCE LL, C.J. Before proceeding to express an opm10n as invited on the qu<>slion raised in the Spl.'cial Case I would crave leave to correct a misapprehension whi<'h ~el.'lllS to have arisen in the minds of the two other members of the Court, due no doubt to the fact that I inadvertently used the word " directed " in two separate p:nagraphs. I desire to state as pl::tin l ~' as possible, in orcler 1hat there shall he no possihl<' mislake ahout it hereafter, that the only question I have invilell an expression o£ this Appeal Court's opinion on is contained in the following paragraph of the Specia l Case, viz. :- " I further directed the Assessors that if Defendant by " a series of acts-carried out for that express purpose­ " caused money to be paid hy the Prosecutor's agent which " in the ultimatl.' result permanently transferred such mone y " from the coffers of the Prose<'utor to the coffers o£ the " Defenda nt, such a transaction would amount to a ' taking ' " and the Defendant could properly be convicted of larceny ." I have not invited the Appeal Court's opinion on any other question-although in stating this case I used the words " I directed " with rPgard to another matter on which I enter ­ tained no doubt whate;er, which is contained in the previous paragraph, which runs as follows :- " I directed the AssPssors that if they found that the " D efendant paid his debts out of the P rosecuto~·'s moQey- SO LOU ON v. Ru. SAWRllY• COOKSON, J. SOLOMON .f1~. REX. PUROJ;;T-L, C.J. 90 " without the Prosecutor's consent, and without at such time " having either the intention or ability to repay such money. " and without having any money to his credit with the " Prosecutor-that these are :facts from which they might " infer an intent to defraud." The evidence given i11 the case was to my mind conclusive on all these points, viz. :- (i) That the Defendant did in £act pay his debts out o£ the Prosecutor's money; (ii) That the Defendant did not obtain the Prosecutor's consent before doing so; (iii) That the Defendant had not the ability to repay this money; (iv) That the .Defendant. had not in fact any money to his credit with the Prosecutor; and, lastly, that so :far as it is humanly possible to gauge a man's intentions byhis acts_:_by such a standard theDe£endal1t had no more intention o£ repayin.g this Ihoney than he had of trying to swim from Freetown to;-let us say-the River Plate, in South America. I directed· the Assessors that if they found (on the evidence given in the course nf the case) on these :facts that theDe£endant either did or omitted todo these several things, that these were :facts, when :found, :from which an intent to defraud might be inferred. The Assessors found-as indeed they were bound to do~all these :facts against the prisoner, and therefore inferred an intent to defraud, and with regard to that particular matter I have not invited any expression of opinion from this Appeal Court for the best of all reasons, that it is .a matter on which I have never enter­ tained the smallest shadow of a doubt. Having cleared.the way by this explanation I will now come to e.lose quarters with the question propounded in the Special Case. The first question which arises in my mind regarding- this matter is this-on what basis was this transaction carried o:ut? Whose money did all the patties believe they were dealing with? Woods' money, or Genet's money? It is quite clear beyond all possible doubt that they all knew they were dealing with Woods'<II1oney, and it is only £or the purpose of at all hazards extricating the Defendant from his present desperate position that ithas been 91 argued with such insistence that it was really Genet's money. I will pause here to recall those admirable words of the late Lord Coleridge in the course of his judgment in Regina v. Ash­ welL because they do appear to me to be so much in point in the matter under discussion. Lord Coleridge said :- " But then it seems to me very plain that delivery and " receipt are acts into which mental intention enters; and " that there is not in law, any nwre than in sense, a delivery " and receipt unless the giver and receiver intend to give " and to receive respectively what is respectively given and " received. It is intelligent delivery, as I think, which the " law speaks of; not a mere physical act from which intelli­ " gence and even consciousness are absent. I hope it is not " laying down anything too broad or loose, if I say that all " acts, to carry legal consequences, must be acts of the mind; " and to hold the contrary, to hold that a man did what in " sense and reason he certainly did not, that a man did in " law what he did not know he was doing and did not intend " to do-to hold this is to expose the law to very just but "wholly unn,ecessary ridicule and scorn. I agree with my " brother Stephen that fictions are objectionable, and I " desire not to add to them. But it seems to me, with diffi­ " deuce, that he creates the fiction who holds that a man " does what he does not know he does, and does not mean to " do; not he who says that an act done by an intelligent " being for which he is to be responsible is not an act of that " being unless it is an act of his intelligence.'' Bearing· in mind these most pregnant words, what, I ask again, was, the basis of this transaction as intended and believed in by all the parties to it? The Defendant was left in full charge of the Prosecutor's business and was to get the necessary money for carrying it on from Genet, Prosecutor's agent. vVhose, money was he (Defend­ ant) to get? Well, Prosecutor's money, of course, which Genet as the Prosecutor's agent had in his hands to his credit. What inoney did Genet think he was paying over to the Defendant when he (Defendant) applied to him for it by the telegram of 2nd July, 1921. Well, to be sure, the Prosecutor's money. Can anyone really suppose that Genet would have paid the Defendant a farthin!2: of his own money? Certainly not. The Defendant received and Genet paid over what they both believed and knew to be the Prosecutor's money, and th~ SOLPlll~ v. RE:J:, SOLOMON tl. Ru. PUl\OIILL, O.J. 92 present suggestion that it was ever anybody else's money would never have been made except for the express purpose I have already adverted to. "Dangerous diseases require desperate remedies." The money then i11 all sense and reason being-as it seems to me-the Prosecutor's money, as soon as ever it was paid over to the Defendant for the purpose (and for the only purpose he had a right to rE'ceive it) of carrying on the Prosecutor's business-he determinPd to misappropriate it and Rpend it on his own private purpose-and in so doing he "Was unquestionably guilty of larceny on the authority of Reg. 1'. Cooke, 1, O.O.O.R. 295, because in such eircumstances the goods or money at the time they are taken arc deemed in law to be in the possession o£ the muster, the possession o£ the servant in sucl1 a case being the possession of the master . The present casE' is very much on all fours with the case o£ Reg. 'V . Cooke, the only diffPrencc bein~r that in that rase the money was recei>ed from the ProsPcutor's cashier, and in this rase the money was 1·erei,·ed from the Prosecutors' ag-ent "Who had money in his hands to tlw Pm•Pc-ulor's nedit, and h:Hl instruc­ tions to pay it to the Dcfendan l who, when he rec-eived i l and mi::>­ appropriated it, committed larc-eny in the mannt>r I ha,·e already dealt with . I have read the ease of Rt'g . v. Prince, Jdl. 1, C.O.C.R. 150, and carefully considered it from ever? Rtanclpoint, and in my opinion it has no bearing w}JatPVer on the rase under discussion; it deals with the distin('tion het"Ween larceny and false pretences (a question which does not ari"e here), and also deals with the general authorit: of hank cashier~. For the rea~on I have just given I answt>r the question propounded in the affi rmaf i \'P. and as a consequence I consider thnt this convirtion waR c•onect and should be upheld.