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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> H. M. Advocate v. Rodger [1868] ScotLR 5_590_1 (8 June 1868)
URL: http://www.bailii.org/scot/cases/ScotCS/1868/05SLR0590_1.html
Cite as: [1868] ScotLR 5_590_1, [1868] SLR 5_590_1
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SCOTTISH_SLR_Court_of_Session
Page: 590↓
Court of Session Inner House Second Division.
v.
Facts:
A purchaser of goods granted bills for the price. Before the bills fell due, he was apprehended on a charge of falsehood, fraud, and wilful imposition, and as having no means of paying, and not intending to pay, the bills. 1. Objection, that it could not be said that he did not intend to pay until the bills fell due, repelled, and held that the objection was on the merits. 2. Objection to charge of theft—bearing that the panel received goods in loan for a short time, and failed to return them—as too indefinite, sustained.
William Rodger was accused—“That albeit, by the laws of this and of every other well-governed realm, falsehood, fraud, and wilful imposition; as also theft, are crimes of an heinous nature, and severely punishable: Yet true it is and of verity, that you the said William Rodger are guilty of the said crimes, or of one or other of them, actor, or art and part: In so far as, you the said William Rodger having conceived a wicked and felonious and fraudulent scheme of obtaining on false representations and pretences, from dealers in plate, watches, jewellery, and the like, quantities of their goods, and of appropriating them to your own uses and purposes, without paying, or intending to pay, for the same, did, in prosecution of your said scheme, on the 12th day of April 1867,” make a certain false representation to Andrew Swan, jeweller in Stirling, as to his possession of large means, &c.; “and you did, by means of these or similar false and fraudulent representations and pretences, or part thereof, wickedly and feloniously and wilfully deceive and impose upon the said Andrew Swan, and induce him to believe that you were a person of good credit and responsibility, and possessed of means sufficient to pay, and that you intended to pay, for any goods you might purchase from him, and to allow you to select from his stock, and to sell you the goods 1st, 2d, 3d, 4th, 5th, 6th, and 7th hereinafter libelled, of the price or value of £138, 5s. or thereby; and you did, in pursuance of your said scheme, then and there, grant to the said Andrew Swan, as in payment of the said goods, five or thereby bills or promissory-notes, each dated the 12th day of April 1867, three of said bills or promissory-notes bearing to be each for the sum of £25, and to be payable respectively at nine, fifteen, and twenty-one months after the date thereof, and the other two of the said bills or promissory-notes bearing to be each for the sum of £31, 12s. 9d., and to be payable respectively at twenty-seven and thirty-three months after the date thereof, you the said William Rodger well knowing that you had no means of paying, and not intending to pay, the said bills or promissory-notes, or for the said goods; and the said Andrew Swan being imposed upon and deceived by your said wicked and felonious, false, fraudulent, and wilful representations and pretences, or part thereof, did, then and there, deliver to you, and you did, then and there, wickedly and feloniously and fraudulently receive from the said Andrew Swan the articles following, or part thereof, his property or in his lawful possession, without making payment, or intending to make payment, for the same, viz.:”—[ Then followed a list of articles]. Other similar charges were set forth, and the indictment then proceeded—“Or otherwise, as regards the three emerald and diamond studs 33d above libelled, and the diamond or other ring 34th above libelled, you the said William Rodger having—(1) on a day between the 23d day of September and 5th day of October 1867, both inclusive, the particular day being to the prosecutor unknown, in or near the said shop or premises in or near Princes Street aforesaid, received from the said firm of William Marshall & Company or the said John Dalrymple Marshall, or Thomas Rymer Marshall, the said studs in loan for a short time, and to be shortly thereafter returned by you to the said William Marshall & Company, or John Dalrymple Marshall, or Thomas Rymer Marshall, did fail to return the said studs, and did, on one or more occasions between the 23d day of September and 5th day of October 1867, the particular time or times being to the prosecutor unknown, in or near the said shop or premises in or near Princes Street aforesaid, or in or near the said premises
Page: 591↓
occupied by the said Equitable Loan Company, or at some other place to the prosecutor unknown, wickedly and feloniously, steal and theftuously away take the said three emerald and diamond studs, or one or more of them, the property or in the lawful possession of the said firm of William Marshall & Company.”
Solicitor-General (Millar) and Blackburn (A.-D.) for the Crown.
Mair and Reid for panel.
Reid, for the panel, stated two objections to the relevancy of the libel. The first was with reference to the first three charges of falsehood, fraud, and wilful imposition. It appeared from the indictment that the prisoner, having received certain goods from Andrew Swan, had come to an arrangement for their payment by granting bills and promissory-notes for the full value of the goods, and not one of these bills had fallen due when, in the month of October last, the prisoner was apprehended. In these circumstances, he maintained that there was not before them a relevant charge of falsehood, fraud, and wilful imposition. To constitute such a charge, it was essential not only that the prisoner should receive the goods, but that there should also be failure on his part to pay for them. It was impossible to say that the prisoner had not intended to pay for the goods until the bills became due. The other objection referred to the charge of theft against the prisoner. It was stated that he received certain studs from Mr Marshall on loan “for a short time,” and he had to submit that that was too indefinite. It did not appear that the period during which the studs had been given in loan did not extend beyond the 25th October; and if the prisoner had got them for a time beyond that date, then he did not steal them, as the libel charged him with the theft between 23d September and 5th October.
Blackburn (A.-D.) said, in respect to the first objection, that it might be a very good objection to make to the jury, but it did not affect the relevancy of the libel. The essence of the charge of falsehood, fraud, and wilful imposition consisted in the fact that, at the time a person obtained the goods, there was no intention to pay for them, and no doubt it would be an element rendering it difficult in the Crown case to prove that the bills, when given, were not given in bona fide; but if they proved that these bills were part of the fraud, then the crime of falsehood, fraud, and wilful imposition would be made good. With respect to the second objection, that too great latitude was taken, he maintained that the averment was specific enough. The goods were lent for a short time, and instead of being returned they were pawned.
Blackburn (A.-D.) admitted that the language might have been more specific.
Lord Justice-Clerk—You do not specify the particular purpose for which the goods were given.
Blackburn (A.-D.) said he did not think that it was necessary to do so. Receipt of goods on loan was not certainly receipt for the purpose of pawning them.
Solicitor-General (Millar) was also heard in support of the libel, and quoted cases to show that the libel was framed according to precedent.
The Court then retired for consultation, after which,
The Lord Justice-Clerk concurred with Lord Ardmillan.
The panel pleaded not guilty. Evidence was led. The jury returned a verdict of guilty; and the panel was sentenced to penal servitude for eight years.
Solicitors: Agent for Crown— T. G. Murray, W.S.
Agent for Panel— W. Officer, S.S.C.