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THEFT. Accessory Subsequent — Possession
Possession Possession of Goods shall be sufficient to convict
of Theft a party not all giving account of his how
he came by them manner of counting by the same to the satisfaction
of the Jurors person having cognizance of the
fact provided 1st that proof be made 1st of
such Testimony Evidence positive of their being missing & conjectural of their being stolen that the goods having been in question were missing according to the missed & being according
to the belief of the evidence stolen, knowledge of the evidence & missing stolen according to his belief,
That they were in possession the party whose property they are
alledged to be or of some are those him whose Title he hath
within .... days before they were found in
possession of the Defendant. v. Princ. Pen. Law 255 & 2 Hale 289 - 90.
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This Direction for it is amounts to no more, seems useful
as a remedy to the excessive tenderness of Judges
& Jurors, who who in this age of let their internal persuasion be ever so strong [assured] who in this age of will not scarce even convict but upon positive
ocular testimony of the Fact: it is frowned
upon the spirit of those provisions that are so
frequent in the Laws against specific Thefts
The 2 proviso's are added for the satisfaction
of those persons who notwithstanding the sense
of the Legislature so often expressed might still otherwise
be disposed to think the latitude given too
great without them.
It looks from a passage of Sr M. Hale, that
in his time Juries were not generally so tempestous
The Author of the Principles of Penal Law, if I
understand him right, will not admitt of a conclusive
inference of the guilt from unaccounted possession,
that is, from any thing but ocular evidence
of the fact of taking. "The Felonious intent" says he
"cannot be presumed from the wrongful possession; it"
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"must result from the evidence given, that the
taking was committed anicus furandi."
[It is a difficult matter to deal with Authors
whose manner of writing is so desultory vague & unsteady]
I interpret the word "wrongful" in this confined
sense, instead of because if understood in it's ordinary & more general
sense, it would only amount to this, that every taking
where a man has not Title is not Theft.
which is saying nothing. I could wish the whole passage had been expressed with such precision, as that I could have been a little more certain of not having misrepresented it
The proposition whatever be its meaning seems is apparently
to be founded on an opinion the the passage of Sr M. Hales
which it introduces — "I would never (says that
cautious Judge) convict any person for stealing the goods
cujusdam ignoti, merely because he would not
give an account how he came by them, unless
there were due proof made, that a Felony
was committed of those goods."
The passage however does not warrant that proposition: the preceding
tho' we should acede to the doctrine it contains for from this that a man ought not to be convicted
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as of Theft for having in his possession goods
of which he will not give an account & of which the
true owner does not appear, it does not follow that
nothing less than the testimony of one who saw them taken
will in any case suffice: it does not follow, for example,
that if the true owner be made appear, according to what is
stated in the aphorism, & he or some one else
swear to the goods having been at such a time in
his possession, having at such another time missing
being according to the belief of the such witness stolen, that
this coupled with the contumacy of the defendant
in not giving his account, how he came by them should be insufficient.
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043 |
theft accessory, subsequent - possession |
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jeremy bentham |
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