Scottish High Court of Justiciary Decisons

Lord Justice-General (Clyde).—Both the relevancy of the complaint and the conviction pronounced in it have been attacked; but the point in either case is the same.

The charge was that the accused had tampered with the “pin” on a fellow-miner's hutch so as fraudulently to represent that the coal contained therein had been gotten by the accused, and thereby induced his employers to pay him (instead of his fellow-miner) for getting the coal.

So far as relevancy goes, that appears to me to be an unexceptionable charge of fraud.

The grounds of suspension are to be found in the circumstance that, while in this as in other pits the miners are paid on the amount of the coal gotten by them, there is in force a minimum rate of wage per shift; and, if the wage of any particular miner, earned on the coal gotten by him, falls short of the minimum shift-wage, he receives a “make-up” representing the difference. The suspender's point is that the increase in the amount of wage (calculated on the coal gotten by him)—which was paid to him in consequence of his having tampered with the pins—did not equal, still less exceed, the difference between the wage to which he was entitled in respect of the coal gotten and the minimum shift-wage. He did not, in short, actually succeed in getting anything more out of his employers than the minimum shift-wage to which he was in any case entitled. On this he argues that, at most, he was guilty of no more than attempted fraud.

It is, however, a mistake to suppose that to the commission of a fraud it is necessary to prove an actual gain by the accused, or an actual loss on the part of the person alleged to be defrauded. Any definite practical result achieved by the fraud is enough. In the present case, the employers were undoubtedly induced, by the fraudulent tampering with the pins, to credit the accused with wages, for coal gotten by him, to an extent to which they would not otherwise have done so. They were also induced to credit his fellow-miner with wages for coal gotten by him to a less extent than they would otherwise have done. This was the definite practical result of the accused's fraud. It is not, in my opinion, any answer to say that such result did not involve the employers in paying more than the minimum shift-wage.

I think, accordingly, that the bill of suspension should be refused.

Lord Hunter.—I agree. A fraud may be committed, although in the result the person defrauded may not have suffered any pecuniary loss. The essence of the offence consists in inducing the person who is defrauded either to take some article he would not otherwise have taken, or to do some act he would not otherwise have done, or to become the medium of some unlawful act. In the present case I think it was relevant to aver that a wrongful act had been done by the accused, with the result that the company were induced to do something they would not otherwise have done. That being so, it is of no account to consider whether in the result the colliery company have not in fact been out of pocket in name of wages for the coal obtained to a greater extent than they would otherwise have been.

Lord Sands concurred.