WALTERS -v- LUNT AND ANOTHER

[KING'S BENCH DIVISION. (Lord Goddard C.J., Hilbery and Ormerod, JJ.), July 24, 1951.]

Criminal Law-Larceny-Receiving property known to have been stolen-Goods taken by child aged seven-Larceny Act, 1916 (c. 50), s. 1 (1), s. 1 (2) (i) (d), s. 33 (1)-Children and Young Persons Act, 1933 (c. 12), s. 50.

The respondents were charged under the Larceny Act, 1916, s. 33 (1), with receiving from a child, aged seven years, certain articles knowing them to have been stolen.
HELD: under the Children and Young Persons Act, 1933, s. 50, the child could not be guilty of larceny as he was under the age of eight years; therefore, the property taken by the child was not property " stolen or obtained… under circumstances which amount to felony or misdemeanour," within s. 33 (1); and the respondents could not be convicted under that sub-section of receiving the property knowing it to have been stolen.
R. v. Creamer ([1919] 1 K.B. 564), applied.
Semble: The respondents could have been convicted of larceny as bailees under s. 1 (1) of the Act of 1916, or of larceny by finding under s. 1 (2) (i) (d).

FOR THE LARCENY ACT, 1916, s. 33, see HALSBURY’S STATUTES, Second Edn., Vol. 5, p. 1032.

FOR. THE CHILDREN AND YOUNG PERSONS ACT, 1933, s. 50, see ibid., Vol. 12, P. 1010.

Case referred to:

(1) R. v. Creamer, [1919] 1 K.B 564; 88 L.J.K.B. 594; 120 L.T. 575; 83 J.P. 120; 15 Digest 974, 10898.

CASE STATED by Lincolnshire justices.

On Apr. 12, 1951, on informations preferred by the appellant the respondents were charged under the Larceny Act, 1916, s. 33 (1), with receiving from their son, aged seven, goods which had been stolen, knowing them to have c been stolen. The goods, which were taken by the child from the premises of their. respective owners, were found on the premises of the respondents, who contended that they did not know that the goods were stolen. It was contended by the appellant that the Children and Young Persons Act, 1933, s.50, which provides that " no child under the age of eight years can be guilty of any offence," did not enact that a child under that age was not capable of committing an offence, and, therefore, although the child could not be convicted as a principal, the receivers of property stolen by him were none the less liable to be convicted, and, under the Larceny Act, 1916, s. 33 (3), the respondents could be convicted oven though the child, as the principal offender, was not amenable to justice. After adjourning the case until May 10, 1951, the justices dismissed the informations on the ground that, as the child, being under the age of eight, could not be found guilty of any criminal offence, he could not in law commit a crime and the property taken by him was not property " stolen or obtained… under circumstances which amount to felony or misdemeanour," within s.33 (1) of the Act of 1916, and, therefore, the respondents could not be convicted of receiving stolen property.

T. R. F. Butler for the appellant.
The respondents did not appear.

LORD GODDARD, C.J.: This is a Case stated by justices for the city of Lincoln, before whom the respondents, a husband and wife, were charged under the Larceny Act, 1916, s.33(1), that:

"…they between Aug. 1 and 31, 1950, at the city of Lincoln, jointly feloniously did receive from Richard Norman Lunt (aged seven years) a Child’s tricycle of the value of £2, the property of Walter Cole, which had theretofore been feloniously stolen, knowing the same to have been so stolen."

There was a similar charge in respect of a child’s fairy cycle alleged to have been received by them on Mar. 11, 1951, from Richard Norman Lunt, aged seven years, and we infer from the Case that Richard Norman Lunt is the child of the respondents. The justices refused to convict on the ground that, as the child was under eight years of age, under the Children and Young Persons Act, 1933, s. 50, he was incapable of stealing and could not be convicted of the felonious act of larceny, and, therefore, the respondents could not be convicted, under a. 33 (1) of the Act of 1916, of receiving stolen property because the property taken by the child was not property " stolen or obtained… under circumstances which amount to felony or misdemeanour."

In my judgment, R. v. Creamer (1) makes it clear that the decision of the justices was correct. The facts in that case were different, as the parties there involved were husband and wife. The Court of Criminal Appeal held that the effect of the Larceny Act, 1916, s. 36, was that no crime was committed by a wife who took her husband’s goods unless she took them when she was leaving, or about to leave, him, and, therefore, a man who received from the wife property taken by her from the husband could not be convicted of receiving because the facts necessary to convict the wife of larceny from the husband (i.e., that she was leaving or about to leave him) had not been proved. In the case now before us the child could not have been found guilty of larceny because he was under eight years of age, and, unless he is eight years old, he is not considered in law capable of forming the intention necessary to support a charge of larceny. Therefore, the justices came to a perfectly proper decision in point of law on the charge of receiving.

This, however, will not prevent the prosecution from preferring a further charge against the respondents for larceny, because, in my opinion, the facts show that it would be open to the justices to convict them either of larceny as bailees or of larceny by finding. Larceny is defined in the Larceny Act, 1916,s.1, as follows:

" (1) A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof; Provided that a person may be guilty of stealing any such thing notwithstanding that he has lawful possession thereof, if, being a bailee or part owner thereof, he fraudulently converts the same to his own use or the use of any person other than the owner:
(2)-(i) the expression ‘takes’ includes, obtaining the possession… (d) by finding, where at the time of the finding the finder believes that the owner can be discovered by taking reasonable steps."

In the case before us the child brought the goods home, and the respondents took possession of them and kept them. It can, therefore, be submitted to the justices that the respondents put themselves in the position of bailees of the true owner, and, by doing the acts and telling the untruths which they did, provided a ground on which the justices could find that they converted the goods to their own use. Alternatively, it could be submitted to the justices that this was a case of larceny by finding, the respondents finding the goods in their house, brought there by the child. If the justices come to the conclusion that at the time when the respondents found the goods, i.e., when the child brought them home, they believed that the owner could be discovered by taking reasonable steps-and I should not think the justices would have much difficulty in finding that-the respondents will be guilty of larceny by finding. Therefore, we dismiss this appeal. It will be for the police to decide whether they will prefer any further charge before the justices. If they do so, the decision of the justices on the receiving charge will be no bar to a conviction if they find the facts for larceny.

HILBERY, J.: I am of the same opinion.

ORMEROD, J.: I agree.

Appeal dismissed.

Solicitors: Sharpe, Pritchard & Co., agents for J. H. Smith, town clerk, Lincoln (for the appellant).

[Reported by F. A. Amies, Esq., Barrister-at-Law.]