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Report No. 69

III. Illustrations

8.135. Illustration (a).-

The illustrations to the section are very important. Illustration (a) which allows evidence to be given of the possession by the accused of other stolen property, makes no reservation as to ownership or time of theft in relation to the various stolen articles in possession. It is not required that the other stolen property must belong to the person whose property is now alleged to be stolen. However, it must first be proved that the particular stolen article was in the possession of the accused.

It may be noted that, in England,1 on the trial of an indictment for receiving stolen goods, evidence may be given that other property stolen within a period of 12 months preceding the date of the offence charged was found with, or had been in possession of, the prisoner, although such other property is the subject-matter of another indictment against him to be tried at the same assizes.

1. Section 27(3), Theft Act, 1968, replacing section 43(1), Larceny Act, 1916.

8.136. History.-

The history of the offence of receiving is of interest. The old "appeal of larceny" was the early ordinary method of recovering stolen goods in another's possession, and this ancient procedure was not yet obsolete in the thirteenth century.1 It lay against anyone, even though not the thief or wrongful taken,2 who might be in possession of stolen goods not retain on immediate pursuit. Consequently, the "appeal" could be successfully waged without proof of any mental element on the part of the appellee; and, the English actio furti, closely linked to the appeal for larceny, "can be effectually used against one who is not thief, but an honest man.

"3 Bracton, however, defining larceny, borrows from the Roman law the definition of the ancient actio furti, and makes much of the mental element, the animus furandi.

"Theft", he says, "is according to the law the fraudulent taking of another's property with an animus furandi against the will of the owner. I say with intent, because without an animus furandi the crime is not committed."4

1. Sayre Mens Rea, (1931-1932) 45 Harvard Law Review 974 (987).

2. Pollock and Maitland History of English Law, Vol. 2, pp. 161-62. See the interesting case of Moor v. Piggun, Selden Society, Select Pleas of the Crown No. 192.

3. Pollock and Maitland, op. cit., supra note 6, at 162.

4. Bracton, De Legibus 150 b. The definition of furtum is taken from Institutes 4, 1, 1. See 2 Pollock and Maitland, op. cit., supra note 6, at 498, No. 4; 3 Holdsworth, op. cit., supra note 6, at 360, No. 5.

8.137. Thus, animus furandi is the appropriate mens rea for the thief. For the receiver, the knowledge that it is stolen property is the requisite mens rea.

8.138. It should be noted that the case quoted in illustration (a) represents a rule which was previously applied in an earlier case in England;1 but, later, the evidence of possession of the other goods, stolen at other times from different people, whether found in the possession of the accused at or before the finding of the property in question, was regarded as inadmissible.2 The reasoning for over-ruling the earlier decisions, was that possession of stolen property merely went to show that the accused was a bad person, and not that he had received the stolen property on a particular date with guilty knowledge. This position had to be altered by a statute.3

1. R. v. Blessdale, (1848) 2 C&K 765.

2. R. v. Oddy, (1851) 5 Cox Cr Cas 210.

3. Section 43, Larceny Act, 1916, now Theft Act, 1968, section 27(3).

8.139. Illustration (b).-

Illustration (b) to section 14 renders admissible a previous conviction of delivering, to another person as genuine, a counterfeit coin known to be counterfeit, in a later prosecution for similar fraudulent delivery of a counterfeit coin. It also renders admissible against the accused his possession of a number of pieces of counterfeit coins.

In either case, the evidence is admissible to prove guilty knowledge. The assumption is that delivery of a counterfeit coin is likely to have resulted in a questioning of the counterfeit article by the person to whom it was presented, and thus drawn the attention of the accused to its suspicious nature. In Rex v. Whiley., 2 Leach Criminal Cases 983, Lord Ellenborough, Chief Justice, explained that if the previous utterings of the counterfeit coin are, in point of time, more detached, they will bear "the less relation" to the particular uttering stated in the indictment, but this would not render the evidence (about the previous utterances) inadmissible.

8.140. Illustration (c).-

Illustration (c) to the section relates to the case of a suit by A against B for damage done by a dog of B, which B knew to be ferocious. The illustration assumes the substantive rule of law,1 that where animal.- such as dogs-belong to a species which is ordinarily harmless, liability for harm caused by the animal does not generally arise until the defendant knew, or had reason to know of, the dangerous propensity of the particular animal in question.

1. May v. Burdett, 9 QB 212.

8.141. Illustration (d) is adapted from an English case.1

1. Gibson v. Hunter, 2 HBL 288.

8.142. Illustration (e) reminds one of another English case,1where libellous hand bills were carried backward and forward before the plaintiff's house, and it was held that the mode of publication was relevant to show the intent of the defendant.

1 Bond v. Douglas, 7 C&P 626.

8.143. Illustration (f) to section 14 is appropriate, because the gist of action in such cases is fraud, and where there is bona fides, there can be no fraudulent intention. The illustration is based on an English case,1 where Cockburn, C.J., pointed out that it was important to ascertain the state of mind of the defendant when he made the representation complained of; and that the state of mind could be shown only by inference.

Just as the plaintiff could prove certain facts necessarily leading to an inference of falsehood-for example, calling every tradesman in the town to say that the person in question was insolvent-similarly, it would be proper if, after the plaintiff had established a prima facie case, the defendant calls a number of tradesmen to say that the person in question was believed by them to be perfectly solvent.

1 Sheen v. Bumpstad, 2 H&C 193.

8.144. Illustration (g) is also an actual case.1 Normally, such evidence would be of no consequence in a suit for the price of work which is essentially based on contract, inasmuch as the absence or presence of "good faith", referred to in the illustration, is ordinarily irrelevant in case of contract. However, it appears that in the actual case which we have mentioned, a considerable body of evidence had been given by the plaintiff to show that C interfered in the matter as the agent of the defendant, and it was necessary to rebut this evidence by showing the good faith of the defendant.

In an action for goods sold and delivered, a general defence is that the defendant is liable lo pay for the goods to another person, and since the jury might come to the conclusion that the defendant wants to keep the goods without paying for them, it becomes material for the defendant to show the bona fides of his defence, by proving payment to such third person.

1. Spamish v. Chartier, 1 Con B 13, referred to by Woodroffe.

8.145. Illustration (h).- Illustration (h) is similar to an English case.1

1. R. v. Thurborn, (1849) 1 Den 387.

8.146. Mental element in theft.-

It may be noted that both under the Indian Penal Code-definition of theft-and in English Criminal law, dishonest intention is required. In the English common law offence of larceny, both the act and the intent must concur. At common law, larceny was the taking and removing, by trespass, of personal property which the trespasser knew to belong either generally or specially to another person, with the felonious intent of depriving the other person of his ownership therein.1

1. Bishop Criminal Law, (1923), p. 412, para. 566.

8.147. Since the act of trespass and the intent to steal are both required, the offence is not committed if there is no dishonesty. In the Indian Penal Code, this requirement is expressed in terms of "dishonesty", which is defined-so far as is relevant-as the intention to cause wrongful gain or wrongful loss. In England, as early as 1849, the specific situation which is referred to in the illustration was dealt with in these words by Parke B1:

"If a man finds goods that have been actually lost, or are reasonably supposed by him to have been lost, and appropriates them, with intent to take the entire dominion over them, really believing, when he takes them, that the owner cannot be found, it is not larceny; but if he takes them, with the like intent, though lost, or reasonably supposed to be lost, but reasonably believing that the owner can be found, it is larceny."

1. R. v. Thurborn, (1849) 1 Den 387; approved by the Court of Criminal Appeal in R. v. Mortiner, 1 Cr App R 20.

8.148. Illustration (h) and abandoned property.-

In this connection, it may be noted that though, in general, things which are abandoned are not capable of being stolen, yet sometimes there may be special situations whereby even in property abandoned some person may have a special property.

8.149. In Hibbert v. McKiernan, (1948) 2 KB 142:(1948) 1 AER 860, the Divisional Court held that a golf club, which intended to exclude the general public from its land, had a special property in golf balls lying on the course after being lost and abandoned by their original owners; that the property was sufficient to support an indictment for larceny against a trespasser who picked up the balls anmno furandi; and that it was immaterial that at any given moment the officials of the club did not know the exact number or position of the abandoned balls lying on the course.

8.150. Recommendation to amend illustration (h).-

Illustration (h), where it says that the fact that public notice of the loss of the property had been given in the place where A was, is relevant, assumes that some evidence would be given to show that the notice was within the knowledge of A, the accused.1 It would, therefore, be desirable to add the words "and in such a manner that A knew or probably might have known of it", after the words "in the place where A was" in illustration (h). We recommend accordingly.

1. Compare Stephen's Digest, Article 11, illustration (j).

8.151. Illustration (i).-

Illustration (i) is based on the English case of R. v. Voke, 1823 Rus&Ry 531. It is different from illustration (c), which is a case of murder outright, while illustration (i) is a case of shooting with intent to kill. Of course, so far as section 14 is concerned, the facts made admissible are admissible only to show the existence of the particular state of mind. This is clear from the last 17 words of the section.

8.152. In R. v. Voke, 1823&Ry 531, previous attempts at shooting were given in evidence to rebut the theory of accidental killing.

8.153. Illustration (j).-

Illustration (j) to the section is taken from the case of R. v. Robinson, 2 East Please of the Crown. The remaining illustrations need no comments

8.154. No change needed except in illustration (h).-

The above discussion does not show any need for amendment of section 14, except in illustration (h) to the extent indicated above.

8.155. Section 15, Introductory.-

According to section 15, when there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant. There are three illustrations to the section. In illustration (a), A is accused of burning down his house in order to obtain money for which it is insured. The facts that A lived in several houses successively, each of which he insured, in each of which a fire occurred, and after each of which fires A received payment from a different insurance office, are relevant as tending to show that the fires were not accidental.

In illustration (b), A is employed to receive money from the debtors of B. It is A's duty to make entries in a book showing the amounts received by him. He makes an entry showing that on a particular occasion he received less than that he really did receive. The question is, whether this false entry was accidental or intentional. The facts that other entries made by A in the same book are false, and that the false entry, is in each case in favour of A, are relevant. In illustration (c), A is accused of fraudulently delivering to B a counterfeit rupee. The question is, whether the delivery of the rupee was accidental. The facts that, soon before or soon after the delivery to B, A delivered counterfeit rupees to C, D and E are relevant, as showing that the delivery to B was not accidental.

8.156. General rule why qualified.-

In general, it is not permissible to give evidence of similar occurrences with which a party is concerned, because that would protract the proceedings without much corresponding benefit. It has been aptly stated1-Although some people intentionally err and others systematically err, there are yet others who never make the same mistake twice, and it is a wise principle of our jurisprudence which provides that a person shall not be condemned on account of his previous mistakes. Thus, in Hollinghan's case,2Willes J. observed: "I do not see how the fact that a man has once or more in his life acted in a particular way makes it probable that he so acted on a given occasion".

In another civil case,3 which was an appeal from a County Court, the Divisional Court delivered a reserved judgment on a point which Swift J. characterised as of "great importance", as it constantly arose in actions for damages in personal injuries sustained in street collisions. In the County Court, the plaintiff had succeeded in obtaining damages for negligent driving by the defendant of a motor bicycle which had ran on to the pavement and struck the plaintiff. In cross-examination, the counsel for the plaintiff asked the defendant whether he had, at about the same time, another accident in the same street, whether the results were fatal and whether he had told the jury at the inquest that exonerated him that he had this accident. The answer to the first two questions was "yes", and to the third question the answer was "no".

On appeal, the defendant contended that these questions ought not to have been asked, that they were irrelevant to the issues and that they were unfair and prejudicial to the defendant. The Divisional Court held that where a defendant was charged with negligence in a particular case, it was not competent to ask him a question to obtain an answer which would show that he had been negligent on some other occasion. In this case, however, the questions were directed towards the defendant's credibility and his general skill as a driver and were relevant to that extent. The appeal was dismissed. To the general rule referred to above, section 15 constitutes a qualification, for the limited purpose provided in the section.

1. Note in (1932) Solicitor's Journal, extracted in note, Evidence of previous conduct, (1932) 34 Born LR (Journal) 98 (99).

2. Hollingham v. Head, CB New Series 388.

3. James v. Audigier, 76 Solicitor's Journal 528.

8.157. In Stephen's Digest,1 in the general rule corresponding to section 14, there is added a clarification as follows:-"But such acts or words may not be proved merely in order to show that the person so acting or speaking was likely on the occasion in question to act in a similar manner." Some such limitation is to be read in section 15 also, although it is not expressed. This is because the section has a limited application. The restriction is of the utmost importance. Two English cases in the Court of Criminal Appeal show its importance.

In R. v. Dunnico, (1931) 23 Cr App R 77, the appellant was sentenced, at the Lanchshire Quarter Sessions, to three years' penal servitude, for obtaining money by false pretences. The false pretences alleged were untrue statements to the effect that he had been sent to interview the defrauded man about an advertisement, and that he was carrying on a genuine business. Two other counts of the indictment alleging similar false pretences, were abandoned, but the evidence of four witnesses as to those charges was admitted "to show system". The Court of Criminal Appeal regarded this as wrongly admitted, saying, in effect, that one could not drag in evidence as to other charges by alleging them as part of a system.

The statements alleged to have been made in the case being tried were either made not made they were either true or untrue. Their making and their untruth could be proved or not proved, entirely without recourse to other occasions. The repetition of a statement neither makes if true or false. It is the old fallacy that nought plus nought can, in some circumstances, amount to more than zero. A system of noughts, a series of noughts to infinity, is still nothing. This self-evident truth received amusing illustration in the bastardy case of Thomas v. Jones, (1921) 1 KB 22, where a number of facts-no one of which by itself amounted to corroboration, was wrongly considered to amount to corroboration. "Zero plus zero cannot produce a plus quantity," said Lord Hewart, re-affirming the truism which had been lost sight of.

1. Stephen's Digest, Article 11, last paragraph.

8.158. The other case as so similar facts was R. v. Tidmarsh, (1931) 23 Cr App R 79, In that case, a man was charged with house breaking on one date. On a later date, he was arrested under the wide provision of the Vagrancy Act, under which, as re-inforced by the decision in Hartley v. Ellnor, (1917) 86 LJKB 938), suspicion in a police officer's mind justifies arrest.

The evidence of this suspicious loitering was admitted on the trial for house-breaking on the earlier date, on the ground that, "it becomes evidence because it is evidence of system, showing what he was doing". This was held to be a mis-direction by the court of criminal appeal which quashed the conviction. "This evidence and this direction to the jury tended to show that this was the kind of man who would commit this particular crime of house-breaking. That was a misdirection which vitiates this conviction."

8.159. Why departure justified.-

This rule is, however, properly qualified, where the question is whether an act was accidental or intentional, or whether an act was done,with a particular knowledge or intention. That the act formed part of a series of similar occurrences in each of which the person doing the act was concerned, is relevant, because the assumption is that if there is a repetition of similar occurrences, the theory of accident would be rebutted. In Makin v. Attorney-General for New South Wales, 1894 AC 57 (65) Lord Herschell, L.C. delivering the judgment of the Board, laid down two principles which must be observed in a case of this character. Of these, the first was that:

"It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried."

8.160. In 1934, this principle was, by Lord Sankey, Lord Chancellor, with the concurrence of all the noble and learned Lords who sat with him, said to be 'one of the most deeply rooted and jealously guarded principles of our criminal law' and to be 'fundamental in the law of evidence as conceived in this country.'1

1. Maxwell v. The Director of Public Prosecutions, 1935 AC 309 (317, 320).

8.161. The second principle stated in Makin's case1 was that-

"the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused."

1. Makin's case, 1894 AC 57, supra.

8.162. Similarly, the evidence that the accused had been connected with similar cases as he one under charge, is admissible on the question of knowledge and intention.1

1. Emperor v. Harjivan Valji, AIR 1926 Born 231 (234).

Indian Evidence Act, 1872 Back

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