CO129-410 - Governor Sir May - 1914 [3-5] — Page 80

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contended that the question of the intention at the time the fugitive took the cheques is one for the jury, and the Magis trate having found on the evidence a 4 whole the guilty intent established the C cannot interfere.

Semple's case 1 East Pleas of the Crown, 691, was relied on. In that case there was a distinct protends held out that the prisoner' wanted the chaise and an agreement arrived at to pay so much for the hire of it, and the Court held that the question of intention was for the jury, and if they were of opinion that the original taking of the s'oise was with a felonious intent to steal it and the hiring a,mers pretence without any intention to restare it, they should con- rict. In this case there is no evidence that any inducement was made to part with the cheques or any pretence put forward to secure them apon which guilty intention can! be inferred.

R. v. Perry, 1 C. & K., 725. This case appears to cover the present case, larceny as a servant under the charge D. Prisoner was given a cheque as a servant of the Great Western Railway and ordered to pay to an overseer and to bring a stamped receipt on his return. On his return the superintend- ent asked the prisoner if he had paid the overseer. He answered "yes," and being asked for the receipt said that the overseer not having one by him had promised to for- ward it to a certain inn in the town for him. In truth, the prisoner had not paid it and on the Monday morning got it changed by a tradesman in Taunton, and applied the proceeds to his own use, The conviction was affirmed.

R.Sharpless, 1, Leach, 92, shows that it is a question for the jury whether the taking was done with evil intention. R. v. Middleton, L.R., 2, O.C.R., 38. disclosed a question of difficulty as appears from the different positions taken by the Judges. The facts are set out fully in Archbold at p. 520 and show how learned Judges have differed as to what constitutes a taking and stealing within the definition of larceny. I think that the ruling of the majority of the Judges would probably cover the "facts in this case; but it is not necessary, however, on the foregoing authorities to hold that the action of the fugitive amounted to isreeny at Common Law, as I am clearly of opinion that there was evidence before the Magis- : trate on which a charge of larceny by a clerk or servant under Ordinance 5 of 1885, section 54, could be sustained, and R. v. Perry I think goverus it, and there was evidence which could be left to a jury (R. v. Sharpless), There is ample evidence to show that the fugitive was engaged as an official of the Canton Treasury at the time of the alleged offence on the assumption that the view which I have taken of the non- existence of the alleged de facto government is correct.

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On the further question whether the facts may constitute larceny by a bailee. I think they do and they seem to come within the authority of R. v. Oxenham, 13, Cox. 349. In that case it was decided that a person who receives & bill of exchange for the purpose of getting it discounted and handing the proceeds over to another and instead of get- ting it discounted indorses it as his own to n creditor in payment of his account, intend- ing to pass the property in the bill absolutely to the creditor is a bailee of a valuable security and guilty of a fraudulent conver- sion of the same to his own use.

As to the last charge of fraudulent con- version, this I take it is alleged to have occurred when the fugitive obtained two cheques in Canton in his own name and instead of remitting to Shanghai converted them to his own use. This I think is an offence under Ordinance 5 of 1885. sertion 62. (See R. v. Aden, 12, Cox. 513.)

Then on the question of embezzlement, iu so far as the specific charge D that the fugitive at Canton, China, then being a servant of the government of the Province of Kwangtung, feloniously and fraudulently did embezzle and steal the two several sume of $100,000 and $60,000 delivered to him for his said employer, it cannot I think succeed; for it is clear that there was no giroRN priation of moneys at all at Canton Be *mong pamód. What the ha

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