Scottish High Court of Justiciary Decisons

Lord Justice-General (Clyde).—There are four questions submitted for our opinion in this stated case. With regard to the first, which relates to objections originally taken to the relevancy of the complaint, as no arguments were presented in favour of these objections, it is unnecessary to answer the question.

The second question raises the point whether the sale of his regimental kilt by a soldier is theft. I think that, some time ago, when the law was perhaps less developed than it is now, it might have been a question of some difficulty to say whether such an act should be indicted under the head of theft or under the head of embezzlement or, perhaps, of fraud. But, looking to the course which the law has taken as exemplified in the cases cited to us, I think there is no doubt, now at all events, that the appropriation of goods by the person to whom they have been entrusted for a limited and specified purpose constitutes theft.

An argument was submitted to us upon the provisions of the Army Act which relate to the “making away with” regimentals and accoutrements. It is quite true that such conduct is, by section 24 of the Army Act, 1881, made a special military offence punishable in a specified way by court martial. It is also true that, if a soldier makes away with any of these things, a method is prescribed for compensating the regimental authority whose property has been taken, according to which the soldier is mulcted in an equivalent sum of money. But none of these considerations appears to me to affect the criminal character of the soldier's action, which was none the less a theft because it was also a special military offence. There is indeed no inconsistency between military proceedings before a court martial and civil proceedings before a Court of criminal jurisdiction in respect of the same wrongful act, however unlikely it may be that either the one Court or the other will act without taking into account what has been done, or may be done, by the other Court of competent jurisdiction. Accordingly, I think we ought to answer the second question in the affirmative.

There remain the alternative questions 3 and 4, which present no difficulty. It having been decided that the soldier was guilty of theft, it follows that the appellant was guilty of reset, and questions 3 and 4 must be answered accordingly. An argument—similar to that upon section 24 which I have already dealt with in connexion with the charge of theft—can be founded on section 156 with regard to the charge of reset. Under section 156, proceedings can be taken by the military authority against a person who receives military regimentals or accoutrements that have been made away with. The answer to that argument however is the same as that which I have already stated with reference to the argument on section 24. I have, accordingly, no doubt that the Sheriff-substitute was entitled to find the appellant guilty of the crime of reset by receiving from the soldier his kilt, and paying for it, in the knowledge that it was part of his uniform and not his property.

Lord Mackenzie.—I am of the same opinion. The question which we have had most argued is that raised under the second question put by the Sheriff-substitute. That question is not, strictly speaking, in form, because it asks,—Was I right in holding that Private Murray committed the crime of theft? It ought to be,—Was I entitled to hold on the facts stated in the case that Private Murray committed the crime of theft? I think the answer to it should be in the affirmative. The facts set out in the stated case are that Murray, who was a private in the Argyll and Sutherland Highlanders, went into a second-hand clothier's shop and offered his kilt for sale to the occupant (who is the appellant in this case) and that she paid him six shillings for it. The position of Murray in regard to the kilt is set out by the Sheriff-substitute thus: “The kilt in question was part of Murray's uniform as a soldier, not his property, but given into his custody for the limited purpose of being worn by him as a member of His Majesty's Forces, and only so long as he so remained.” Upon these facts, I think the Sheriff-substitute was entitled to hold that the crime was the crime of theft.

For my part, I am content to adopt the definition of theft which is given by Alison in his Principles of the Criminal Law of Scotland published so long ago as 1832. At page 250 he says: “1. Theft consists in the secret and felonious abstraction of the property of another for the sake of lucre, without his consent … 2. It is not the less theft that the owner has entrusted the property to the thief, provided that was done for a temporary and transient purpose, and not with the intention of transferring the real rights, or subjecting the depositary to a mere action for account. It happens continually in the business of life, that the possession of property is, for temporary purposes, entrusted to others, without any intention either of transferring the right of custody, or of calling the custodier to account merely by an action of account … In all of them, accordingly, the abstraction of the articles by the person intrusted is theft.” At page 263: “It is not the less theft that the owner has put the article stolen in the prisoner's way, or given it into his custody for a short period.” Everything that is necessary to satisfy that legal definition is to be found in the facts of the present case, and I am accordingly of opinion that the second question should be answered as proposed by your Lordship.

I do not desire to add anything, in regard to the argument addressed to us upon the Army Act, to what has been said by your Lordship. I think that the question what particular tribunal has jurisdiction to try an offence does not in any way affect the nature and quality of the act which has been committed. If that is so, then I think it necessarily follows that the Sheriff-substitute was entitled to find that the appellant was guilty of reset.

Lord Cullen.—I am of the same opinion. On an application of the more modern authorities cited to us, and, in particular, the cases of George Brown, Anderson, and Martin, I am of opinion that the act of the soldier in feloniously parting with his kilt by selling it was an act of theft at common law. I am further of opinion that the remedies specially provided by the Army Act do not in any way destroy or alter the common law quality of the act, and that, accordingly, the Sheriff-substitute was entitled to convict the appellant upon the charge of reset.