The defendant was indicted and tried at Devon Quarter Sessions on two counts, the first count for stealing and the second count for feloniously receiving a number of sheep, the property of Mr. Glanfield, a neighbouring farmer of the Parish of Belstone, some twenty two miles distance from Exeter. Mr. Glanfield had last seen the sheep on Belstone common about a fortnight before Christmas. On 22nd December Mr. William Smith, a cattle dealer, received a letter from the defendant offering to sell him some sheep. The letter informed Mr. Smith that the defendant would be at Little St. John’s Cross at the King William Inn about a mile away from Exeter. On the evening of 23rd December Mr. Smith met the defendant at the Inn and the defendant sold him a number of sheep, including those belonging to Mr. Glanfield. At the close of the evidence for the prosecution, the defendant’s counsel submitted to the Court that there was not sufficient evidence to go to the jury. This submission was not accepted and the jury found the defendant guilty of feloniously receiving the sheep knowing them to be stolen. Following upon that verdicts counsel objected that there was no evidence before the Court to support the second count, and that the jury should have been directed that they could not find him guilty because, so he contended: ‘The evidence proved no more than recent possession by the prisoner after the loss, unaccounted for, and that, although a presumption of guilt might legally be inferred from recent possession, unaccounted for, alone, if the offence of which the jury found the prisoner guilty had been theft, yet that guilt could not be inferred from recent possession, unaccounted for, alone, in considering whether the prisoner was guilty of feloniously receiving the sheep knowing them to have been stolen.’
There was sufficient evidence to support the verdict but at the request of the defendant’s counsel they granted a case on the following question: ‘Whether, upon the whole case, the jury should have been directed that they could not lawfully find the prisoner guilty upon the second count.’ In his submissions to the Court the defendant’s counsel contended that the evidence established that it would have been impossible for either the defendant or his sons to have stolen the sheep and therefore the prisoner should have been acquitted, for recent possession is evidence of stealing only and not of receiving.
Held: This submission was rejected.
Bollock CB said: ‘We are all satisfied that the Chairman could not have withdrawn this case from the consideration of the jury or have directed them that there was no evidence that the prisoner had received the sheep knowing them to have been stolen. Speaking for myself, I may add, that in my opinion, the distinction taken by Mr. Carter between a charge of stealing and one of receiving, with reference to the effect of evidence of recent possession, is not the law of England. If no other person is involved in the transaction forming the subject of the enquiry, and the whole of the case against the prisoner is that he was found in possession of the stolen property, the evidence would, no doubt, point to a case of stealing rather than a case of receiving; but in every case, except, indeed, where the possession is so recent that it is impossible for anyone else to have committed the theft, it becomes a mere question for the jury whether the person found in possession of the stolen property stole it himself or received it from someone else’
Martin B agreed.
Byles J said: ‘If the question was whether the verdict was right, there would be much force in many of Mr. Carter’s observations; but the point we have to decide is whether there was any evidence to go to the jury.’
Blackburn J. in his judgment rejected the submission made by Mr Carter observing: ‘I do not agree . . that recent possession is not as vehement evidence of receiving as of stealing. When it has been shown that the property has been stolen, and has been found recently after its loss in the possession of the prisoner, he is called upon to account for having it, and, on his failing to do so, the jury may very well infer that his possession was dishonest, and that he was either the thief or the receiver according to the circumstances.’
Mellor J concurring, said: ‘It is clear, that, whatever was the mode in which the jury in this case arrived at their verdict, there was evidence from which they might safely have drawn either conclusion.’
In the course of giving their judgments a number of the judges expressed their opinions as to how the jury might have reached their verdict. Pollock C.B., said: ‘If, as I have said, there is no other evidence, the jury will probably consider with reason that the prisoner stole the property; but, if there is other evidence which is consistent either with his having stolen the property, or with his having received it from someone else, it will be for the jury to say which appears to them to be the more probable solution.’
He then observed that although there was some evidence that the accused had stolen the sheep, yet the inference that he had sent his sons to drive the sheep to St. John’s Cross, having received them from someone who had stolen them, appeared to him to be the more cogent, adding: ‘however this may have been, we are all of the opinion that there was evidence to go to the jury’.
Martin B commented: ‘In cases of this nature it often happens that some of the jurors feel doubts, and think they ought not to convict the prisoner of stealing unless someone has actually seen him taking the property, and so they concur in convicting him of receiving, supposing that that is the more lenient view.’
Byles J stated that in his opinion there were three ways which he described, in which the accused might have received the sheep with guilty knowledge. Blackburn J, in analysing the facts, also expressed the view that it was more probable that the sheep had been stolen previously by some other person and driven to some place near Exeter, where they were picked up by the boys. He added: ‘I andpound; that were so, the inference would be irresistible that the person from whom the boys received them was the actual thief. Then, that being so, the father was, no doubt, an accessory before the fact, and there was, therefore, evidence for the jury on which they might convict him of receiving.’
In speculating as to how the jury might have arrived at their verdict, the judges were in no manner suggesting that a judge, in his summing-up, should direct the jury that, where a person is charged with theft and in the alternative with receiving, and the evidence (or the sole evidence) connecting him with the offence is the recent possession of the stolen property, then if the only reasonable inference is that he must have either stolen the property or received it knowing it to be stolen, they should ask themselves which is the more probable offence and convict accordingly. There is no reflection of such a rule in English authorities and Langmead has not been cited in any English judgments for such a proposition. Their Lordships are firmly of the opinion that not only was such a direction quite uncalled for In this case for the reasons already given but that such a direction is wrong in law. It detracts, or may be thought to detract, from the obligation of the jury to be satisfied beyond reasonable doubt that the accused is guilty of the particular offence, before they enter such a verdict.
Bollock CB, Mellor J, Blackburn J, Byles J, Martin B
 EngR 47, (1864) Le and Ca 427, (1864) 169 ER 1459
England and Wales
Cited – Attorney General of Hong Kong v Yip Kai Foon PC 7-Dec-1987
High Court of Hong Kong – The prosecutor appealed against a quashing of a conviction on a charge of handling stolen goods. The defendant had been charged with robbery with handling as an alternative provided under statute.
Held: Where there . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 May 2022; Ref: scu.281761