Odger's English Common Law

THE MIND OF THE PROSECUTOR. 347
now by section 1 (2) (i) of the Larceny Act, 1916, "the
expression < takes ' includes obtaining the possession
(a) by any trick ;
(b) by intimidation
;
(c) under a mistake on the part of the owner with
knowledge on the part of the taker that possession has
been so obtained
;
(d) by finding, where at the time of the finding the
finder believes that the owner can be discovered by
taking reasonable steps."
In R. v. Middleton 1 the prisoner was a depositor in the post office savings
bank in which lis. stood to his credit. He gave notice in the ordinary
form to withdraw 10s., stating in his notice the number of his deposit
book and the amount to be withdrawn. A warrant for 10s. was thereupon
issued to him, and a letter of advice was sent to the post office at
Netting Hill to pay him 10s. He went to that office and handed his
deposit book and the warrant to the clerk. The clerk referred by mistake
to a letter of advice for £H 16s. 10^., and placed this sum upon the counter
for the prisoner to take up. He took up the money and went away ; and
the jury found that at the moment of taking it up he had the felonious
intention of stealing it. On these facts the Court for Crown Cases Reserved
held by a majority of eleven judges to four that, although the prisoner had
done nothing to induce the mistake of the clerk, he had committed larceny,
for he knew when he took up the coins that he had no right to do so. Such
a case clearly comes within the clause of the Larceny Act, 1916, set out
above, as to knowingly taking advantage of a mistake.
In R. v. Ash/veil, 2 the prisoner asked the prosecutor for the loan of a
shilling in the yard of a public-house at about eight o'clock at night ; the
prosecutor gave him a sovereign believing it to be a shilling, and the
prisoner took it under the same belief. Subsequently, however, he dis-
covered the mistake, and fraudulently appropriated the sovereign to his
own use. On the above facts it was unanimously determined that the
prisoner had not been guilty of larceny as a bailee ; but the Court were
equally divided upon the question whether or no he was guilty of larceny
at common law ;
and so the conviction stood*.
This decision led to much discussion, and the better opinion was that he
was entitled to an acquittal. The prosecutor consented to part with the coin
which he handed to Ashwell. The change of possession was his act and
took place with his entire consent. He intended to part with his whole
property in that coin. He mistook its value, it is true ; but Ashwell had
done nothing to induce the mistake. 3 Moreover, Ashwell had no " intent,
i (1873), L. R. 2 C. C. R. 38.
2 (1885), 16 Q. B. D. 190.
8 See the decision in this case discussed in B. v. Flowers (1886), 16 Q. B. D. 643, and
post, p. 331.
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