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All England Law Reports/1951/Volume 2 /Walters v Lunt and Another - [1951] 2 All ER 645

[1951] 2 All ER 645

Walters v Lunt and Another

KING'S BENCH DIVISION

LORD GODDARD CJ, HILBERY AND ORMEROD JJ

24 JULY 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 ob-
tained ... under circumstances which amount to felony or misdemeanour," within s 33(1); and the respond-
ents could not be convicted under that sub-section of receiving the property knowing it to have been stolen.

R v Creamer ([1919] 1 KB 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).

Notes

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 in judgment

R v Creamer [1919] 1 KB 564, 88 LJKB 594, 120 LT 575, 83 JP 120, 15 Digest 974, 10898.

Case Stated

Case Stated by Lincolnshire justices.

On 12 April 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 been stolen. The goods, which were taken by the child from the
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premises of their respective owners, were found on the premises of the respondents, who con-
tended that
[1951] 2 All ER 645 at 646

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 even though the child, as the principal offender, was
not amenable to justice. After adjourning the case until 10 May 1951, the justices dismissed the in-
formations 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 receiv-
ing stolen property.

T R F Butler for the appellant.

The respondents did not appear.

24 July 1951. The following judgments were delivered.

LORD GODDARD CJ.

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 feloni-
ously 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 11
March 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 un-
der 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 con-
victed, under s 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 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 hus-
band'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 (ie, 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 lar-
ceny 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.
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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:
[1951] 2 All ER 645 at 647
"(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 respond-
ents found the goods, ie, when the child brought them home, they believed that the owner could be discov-
ered 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).

F A Amies Esq Barrister.