CASES IN CROWN LAW DETERMINED BY THE JUDGES FROM THE FOURTH YEAR OF GEO. II. 1730, ΤΟ THE PRESENT TIME. 1730. THE KING against HASSEL. CASE I. AT the Old Bailey on Friday the 16th October 1730, It is felony in Thomas Hassel was tried before LORD CHIEF JUSTICE RAY- a servant of the Post-office MOND, present MR. JUSTICE DENTON, and MR. BARON to steal a sinCOмYNS, on the statutes 2 Geo. II. c. 25. s. 3. and 12 Ann. from a letter gle bank-note c. 7. for stealing one bank-note of fifty pounds, the property of John Arden, in the dwelling-house of Edward Carteret and Edward Harrison, Esqrs. It appeared in evidence, that the gentlemen in whose dwelling-house the felony was laid to have been committed were the Post-masters-general; that the prisoner was employed, by them, in the Post-office, in the capacity of a sorter of letters; that the bank-note described in the indictment had been sent by the post, in a letter from John Arden of Manchester, directed to Mr. Bury in London; and that the prisoner had received the money for it from the Bank, by the hands of one Mitton, a ticket-porter, the day after VOL. I. comme committed to his care. 1730. HASSEL'S that on which the letter would arrive in town by the regular course of post. BEFORE the prisoner entered on his defence, his Counsel, Mr. Serjeant Daniel and Mr. Strange, submitted two objections to the consideration of the Court.-FIRST, that the evidence, admitting it to be true, only proved that the prisoner was guilty of an embezzlement and breach of trust, and not of larceny, within the true and legal definition of that crime.-SECONDLY, admitting that the taking was suf ficient to satisfy the legal notion of larceny, yet the subject of it was not within the terms or meaning of the Act of 2 Geo. II. c. 25. UPON THE FIRST POINT they argued, that the prisoner, from the nature of his office, and the extent of the trust reposed in him, was, under the circumstances of this case, discharged from all criminal responsibility. He was employed at the General Post-office as a sorter of letters, and had accordingly given security, to a very considerable amount, for the faithful performance of his duty. The mail contained many bags, and each bag a great number of letters, and upon their arrival at the Office, they were immediately delivered into the custody of the sorters, whose business it is to arrange them according to their respective directions, for the purpose of their being afterwards delivered. The delivery of the bags gives the sorters an entire possession, upon a trust that they will not violate the confidence reposed in them; for whoever sends letters by the hands of others, reposes in the integrity of those into whose hands they are committed, and if any mistake or abuse happen, although it may amount to a high and aggravated misdemeanor, and although they or their securities may be civilly liable for the amount of the loss, yet it is no felony. This distinction is so completely established by the known rules of the Common Law, that it would be trifling with the time of the Court to cite precedents in support of it. The Legislature have themselves acted upon and confirmed this Rule of Law; for by the 9 Ann. c. 10. s. 40. they have expressly provided for this offence, by inflicting a penalty of twenty 1730. HASSEL'S CASE. pounds, with incapacity of office, upon any person who shall presume wittingly, willingly, and knowingly, to open or detain any letter after its delivery at the Post-office, and before its delivery to the person to whom it is directed, without an order for that purpose under the hand of the Secretary of State. It is apparent, therefore, that this penalty was all the punishment which the law iutended to inflict upon this offence; for it cannot be contended that the prisoner is with- Dalt. 102. in the 21 Hen. VIII. c. 7. which makes it felony for servants Dyer, 5. 1 Hale, 667. to rob their masters; that Act requiring that the master 1 Hawk. 138. should be the owner of the goods; and it is clear that the prisoner was not servant to the owner of the note. It indeed furnishes a strong argument that servants entrusted with their masters' goods were not guilty of felony by the common law for taking them away (a). UPON THE SECOND POINT they contended, that supposing the prisoner had not the entire or legal possession of this bank-note, but a bare charge of the property only, yet it is not an offence within the Act. The statute of 2 Geo. II. c. 25. s. 3. enacts, that "whoever shall steal or take by "robbery any Exchequer orders, or tallies, or other order 66 entitling any other person to any annuity or share in any "parliamentary fund; or any Exchequer bills, bank-notes, "South-Sea bonds, East-India bonds, dividend-warrants, "&c. &c. shall be deemed guilty of felony;" and so goes on enumerating other species of property, all of them in the plural number; whereas the fact charged in the indictment is for stealing one bank-note only. Penal Acts are to be construed with great strictness, and cannot be made to affect (a) But now by 5 Geo. III. c. 25. s. 17. and 7 Geo. III. c. 50. it is felony, without clergy, for any sorter or other servant of the Post-office to secrete, embezzle, or destroy any letter containing a bank-note, or other security therein mentioned. Upon these statutes Richard Clay was indicted at the assizes for York, as a servant to the Post-office, for embezzling a letter containing a bill of exchange. It was objected, that as he had not taken the oath required by 9 Ann. c. 10. s. 17. and 41. he could not be considered as a legal servant to the Post-office; but the Court over-ruled the objection. 1730. HASSEL'S CASE. 2 Haw. 490. (1) Created Ld. Hard wicke in 1733; appointed Chancellor 1736; cre 3 Hen. VII. 12. 21 Hen. VII. 14. B. Cor. 58. the life, liberty, or property of the subject, but according to their literal import. As to the present case, it is highly probable that the Legislature did not intend to take away life for stealing only one of the securities which the Act describes. The 1 Edw. VI. c. 12. s. 10. made it felony without clergy, "to steal horses, geldings, or mares," in the plural number; it was doubtful whether this extended to the stealing of one horse only; and the Legislature thought it proper to pass another Act to supply this defect. SIR PHILIP YORKE (1) Attorney-General, answered these objections on the part of the Crown. FIRST,―The offence is clearly felony, and not merely breach of trust; for the prisoner had no property in the ated Viscount bank-note, but a bare charge only over the letter in which it Royston and Earl of Hard- was contained, to sort and put it into its proper place. It is wicke in 1754. therefore like the case of a butler who has a charge over plate; or of a shepherd who has a flock of sheep committed to his care; or of a weaver who has silk delivered to him by the throwster to work; and in all these cases, it has been decided that it is felony to steal any of the goods so delivered, notwithstanding the delivery. But admitting, for a moment, that the prisoner was possessed of the property in the leiter, in the same manner as it is said a carrier is of goods which are delivered to him to carry, yet still he would be guilty of felony; for by opening the letter the privity was determined. And it has accordingly been adjudged, that if a pack of goods, or a tun of wine, be delivered to a carrier, and he open them, and take out part of the goods or wine, he is guilty of felony: but I insist, that a carrier has no such possessory property by the delivery of goods, as will in any case excuse him from the guilt of felony, if he feloniously convert them to his own use. 1 Hawk. 36. 13 Edw. IV. 4, 5. S. P. C. 25. 1 Hawk. 135. See a case co Easter Term, 1781. As to THE SECOND OBJECTION, I readily admit, that penal ram Nares J. statutes ought to receive a strict construction; but they must also be construed according to sound reason, common sense, and the apparent intention of the Legislature. That the present statute extends to one note as well as to two or more, is, in my apprehension, very plain and apparent. The words 2 East, 598. 66 are, "whoever shall feloniously steal any notes," &c. and then the Act goes on to say, "notwithstanding any of these par"ticulars may be termed in law a chose in action;" which plainly shews, that it was the intention of the Legislature to make the stealing of a chose in action, which a bank-note is, felony. It would be a most unreasonable construction to say, that the Legislature intended to make it felony to steal two notes of five pounds each, and yet that it should not be felony to steal one note of ten thousand pounds. As to the argument that has been drawn from the 1 Edw. VI. c. 12. s. 10. the words in that statuto are, 66 horses, mares, geldings," and not any horses, mares, or geldings," according to the manner of expression used in the 2 Geo. II. c. 25.; and yet in that ease it was only doubted whether it did extend to one horse, &c. The 2 and 3 Edw. VI. c. 33. therefore only declared, that the stealing of one horse should exclude the felon from the benefit of clergy; which shewed that the Parliament only gave their judgment that it was felony without clergy by virtue of the first Act, the second being merely to remove doubts, and not to make a new law. By 22 and 23 Car. II. c. 7. it is made felony to burn any ricks or stacks of corn, &c. in the night-time; and yet it has never been doubted, because this is expressed in the plural number, but that the burning of one barn, &c. is felony within the statute. THE COURT, after consulting upon the subject, declared that it was their clear and unanimous opinion, that there was nothing in either of the objections; but that the offence, if the Jury believed the witnesses for the King, was clearly felony without the benefit of clergy. THE prisoner was accordingly put on his defence, and he called several witnesses, who established a probable alibi ; upon which he was acquitted. 1730. HASSEL'S CASE. |