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SCOTTISH_Shaw_Court_of_Session

Page: 1168↓

Lord Advocate

v.

M'Intosh No. 366.

Justiciary Cases

Feb. 2 1835

Lord Justice-Clerk, Lord Gillies, Lord Mackenzie, Lord Moncreiff, Lords Meadowbank and Medwyn.

The Lord Advocate. — Sol.-Gen. M'Neil— Urquhart. Duncan M'Intosh, Pannel.— H. G. Bell.

Subject_Indictment—Theft.—

In an indictment charging alternatively theft and breach of trust, it was stated in that part of the minor which related to the charge of theft, that the pannel, when a porter or servant in the employment of a company, had received from, and been intrusted by, the captain of a vessel belonging to the company, with a sum of money in silver and bank notes, for the special purpose of being delivered to a certain party, and did then steal, and theftuously away take the said sum of money, &c.—held that this was a relevant charge of theft.

At the winter circuit at Glasgow, Duncan M'Intosh was indicted on a charge of theft, as also breach of trust and embezzlement. That part of the minor proposition which set forth the charge of theft was as follows:—“In so far as, on or about the 6th day of June, 1834, or on one or other of the days of that month, or of May immediately preceding, or of July immediately following, you the said Duncan M'Intosh, being then a porter or servant in the employment of the company now or lately trading or carrying on business under the name of the Highlander, Maid of Morven, and Staffa Steam-Boat Company of Glasgow, and you the said Duncan M'Intosh having been employed and intrusted by John M'Pherson, then master of the Highlander steam-boat, belonging to the said company, then trading between Skye and Glasgow, and now or lately residing in Carrick Street, Glasgow, to deliver various letters and sums of money, brought by him from different individuals by whom he had been intrusted with them, to the several individuals or companies to whom they were addressed, and for whom they were intended; and, in particular, you the said Duncan M'Intosh having, (1.) time above libelled, and on board the said steam-boat called the Highlander, then lying at or near to the Broomielaw, at or near Glasgow, or at some other place in or near Glasgow to the prosecutor unknown, in the course of your employment aforesaid, received from and been intrusted by the said John M'Pherson with the sum of £12, 9s. sterling or thereby, in bank or banker's notes and silver money, for the special purpose of being delivered by you to Thomas Mitchell, then and now or lately tobacconist in King Street of Glasgow, you the said Duncan M'Intosh did, time and place aforesaid, wickedly and feloniously steal, and theftuously away take, the said sum of £12, 9s. or thereby, being the property of Alexander M'Kinnon, now or lately merchant in Kirktown of Glenelg, in the parish of Glenelg, and county of Inverness, or in the lawful possession of the said John M'Pherson.”

An objection was taken at Glasgow, and certified to the High Court, that the above statement was irrelevant as a charge of theft, and amounted only to breach of trust.

H. G. Bell, for the pannel, referring to the distinction between theft and breach of trust, and to the cases illustrating that distinction, ¹ maintained that the money alleged to have been stolen was in the pannel's lawful possession, and that his appropriation of it was only a breach of trust, as appeared from the indictment itself, in which the word “intrusted” was used;—that the case of Murray and Tait ² differed from the present, as there the pannel was not a porter or person daily employed, but a clerk only occasionally employed, and the money came directly into his hands from those of the owner, with express instructions that it should be immediately conveyed to a particular place.

Milne, A. D. answered, that, as the pannel was alleged to have received not merely a sum of money, but certain bank notes and silver, for the special purpose of being delivered, and as the legal possession of the money stolen was with the owners or the captain of the vessel, his appropriation thereof amounted to theft; and that this point had been already ruled in the case of Murray.

Lord Justice-Clerk.—I have considered the arguments of counsel, and the authorities referred to, and am now fully satisfied that the charge of theft in this case is relevant. The case of Murray, which was decided in 1829, and has since been followed, must be held as having settled the point. The way in which the minor proposition in this indictment sets forth the alleged act of theft is indeed different, and at first made me hesitate. But though I am clear that the term “intrusted” should not have been used, yet, considering that the delivery is for the special purpose of the money being paid over to the persons specially pointed out, and that, till the accomplishment of such purpose, the possession is still justly held to be in M'Pherson the deliverer, I cannot hold that there is not a sufficient statement to warrant the charge of theft.

Lord Gillies.—I entirely concur with the opinion just given. I do not regret, however, that the case was certified, as this judgment will now finally settle the point.

Lord Mackenzie.—I am also satisfied that this charge of theft is relevantly laid. The difficulty arises from the thing stolen not having been a single article, but money. The money was given to be delivered in forma specifica, and I see no solid ground of distinction between money and any other article. Our practice confirms this view. The case of Murray is precisely in point—it was the case of a clerk, and the principle applies in the case of a porter a fortiori. The case of Nicol Sheriff, tried in this Court in 1833, and other cases on circuit, are to the same effect. I also had some doubts from the word “intrusted” having been used, but I do not hold that to be material, as there was to be instant delivery, and no other purpose is mentioned.

Lord Moncreiff.—I am decidedly of the same opinion, and am glad this case has been certified. In respect to punishment, the question is not of much importance, as breach of trust may be dealt with in the same way as theft, but it is of importance in point of principle. The difficulty arose from the use of the term “intrusted,” though it has been so used by Mr Hume and Mr Alison. This is

_________________ Footnote _________________

¹ Hume, i. 55, et seq.; Alison, i. 250, et seq.; Leach's Crown Law, i. 297–301, 409; ii. 845.

² Alison, i. 254.

identical with the case of Murray. M'Pherson was in law the dominus, and the pannel was to deliver the money in forma specifica. Reference has been made to the law of England, in which there was formerly this subtlety, that, if a servant went to receive money for his master and embezzled it, this was not considered theft; but then, if the master delivered money to the servant and be subsequently appropriated it, this was clearly held to be theft, as in Paradise's case. ¹

Lords Meadowbank and Medwyn concurred.

_________________ Footnote _________________

¹ East, II. 565.

The Court accordingly repelled the objection to the relevancy of the indictment.

Solicitors: James Tytler, W.S.—Agent for the Crown.

SJ 13 SJ 1168 1835