This action is brought for a declaration terminating the unexpired term of the lease, and for possession. The lease provides for re-entry for non-performance and I think upon the undisputed facts here the plaintiff is entitled to have the judgment prayed for.

The appeal should be allowed with costs here and below. Appeal dismissed upon an equal division of the Court: Harvey, C.J. and Ives, J. for the allowance of the appeal; Beck and McCarthy, JJ. for its dismissal.

Clarke, Carson, Macleod & Co., solicitors for plaintiff, appellant.

Ball and Cameron, solicitors for defendant, respondent.

App. Div. 1919

Warner

V.

Linahan

Ives, J.

[APPELLATE DIVISION]
REX V. SCOTT

Criminal Law-Evidence-Receiving Stolen Goods-Recent
Possession as Evidence-Onus of Proof in Criminal
Cases-Extent of Burden on Accused-Explanation by
Accused-Reasonableness of as Question of Fact-Tests
of Reasonablenes-Effect of Failure of Actused to Go
on Stand.

Recent possession of stolen goods is evidence of receiving as well as of
stealing them (Reg. v. Langmead, 9 Cox C.C. 464, L. & C. 427, 10 L.T.
350, followed; Rex v. Thornton, 2 Cr. App. R. 284, and Rex v. Lum Man
Bow, 15 B.C.R. 22, 13 W.L.R. 345, 16 C.C.C. 274, referred to).
Since the carlier cases on the sufficiency of an explanation of the posses-
sion of stolen goods were decided when the accused had no right to give
evidence they must be considered now in the light of the present condi-
tions, and, perhaps, subject to some qualification. It should, however,
still be a matter of consideration for a Judge or jury that the Crown,
with full knowledge of and opportunity for the investigation of an ex-
planation reasonable on its face, has failed to make such investigation
and bring the result of it before the Court (Rex v. McKay, 34 N.S.R.
540, 6 C.C.C. 151, referred to on the latter point).
While the onus of proof in criminal cases is always on the Crown, yet
where the Crown has established such facts as without more will justify
the jury in finding the accused guilty he is not entitled to an acquittal
unless he satisfies the burden which is then cast upon him of raising in
the minds of the jurors a reasonable doubt of his guilt. The reason-
ableness of the explanation is generally more a question of fact for the

1919

April 30

App. Div. 1919

Rex

V.

Scott

Harvey, C.J.

jury or the judge trying the charge than one of law open to the consideration of a Court of Appeal, and depends, not merely on the accused's statement, but also upon the time and manner of its making and the question whether his conduct was consistent with it, and a Judge or jury would in most cases be properly affected by the accused's failure to support by his sworn testimony an explanation previously given, though there may be circumstances whereunder too much importance should not be attached to such failure.

Case reserved by His Honour Frederick A. Morrison, Judge of the District Court for the Judicial District of Stettler, the accused being convicted of receiving a victory bond, payable to bearer, knowing it to be stolen. Conviction affirmed.

The appeal was heard by HARVEY, C.J., BECK, SIMMONS and MCCARTHY, JJ.

C. C. McCaul, K.C., for the accused.

W. F. W. Lent, K.C., for the Crown.

April 30, 1919.

The judgment of the Court was delivered by

Cur. adv. vult.

HARVEY, C.J.-This is a case reserved by His Honour Judge Morrison.

The accused was convicted of receiving a victory bond for $100 payable to bearer, knowing it to be stolen.

Objection was taken by his counsel to his being convicted on three grounds, viz.: (1) That there was no evidence to indicate that the things stolen were stolen by any one other than the prisoner; that evidence of recent possession was prima-facie evidence of stealing and not of receiving; (2) That if the prisoner did not steal the goods, there was no evidence that he knew they were stolen; (3) That in either case, the prisoner gave a reasonable account of how he came to be in possession of the goods; that that was all the law required, and that once a reasonable explanation was given the onus was on the Crown to show that the statements he had made were not or could not be true.

The trial Judge over-ruled these objections and the question he has reserved is whether he was right in so doing.

The evidence at the trial disclosed that the victory bond in question had been stolen during the night of February 6-7

App. Div. 1919

Rex

V.

Scott

last, in Edmonton, that the accused who was a young man recently from Winnipeg where he lived, and who with two friends was canvassing for subscriptions for a magazine, had the bond in his possession a short time after, which might have been four or five days, and apparently was not more Harvey, C.J. than a week or 10 days, and that he then said he received it from "home" or from his mother, that about a week after he had first shown it to the bartender of the hotel where he was staying, he applied to him for a loan to pay his expenses to Winnipeg, offering the bond as security; that he then left for Winnipeg stating that he would return in a few days, but that instead of returning he telegraphed instructions to have the pond sold and the balance due him remitted to him at Winnipeg. The holder of the bond in proceeding to carry out these instructions took the bond to a broker where it was discovered that it was stolen, and the holder was arrested. This was on February 27, or 20 days after the theft. There was no evidence given by or on behalf of the accused.

. The first objection is that there is no evidence of guilt other than the fact of recent possession and that is not evidence of receiving, but only of stealing. I am not prepared to accept the statement that there is no evidence other than recent possession. The conduct in dealing with and disposing of the bond is entitled to be considered, but for the purpose of the argument I will assume the statement to be correct.

In support of this contention, reference is made to certain authorities. In Rex v. Densley (1834) 6 Car. & P. 494, Patterson, in his address to the jury said:

"There is no evidence that any other person stole the property * * I confess it appears to me on this evidence rather dangerous to convict them for receiving. It is evidence on which persons are constantly convicted of stealing."

That statement certainly seems to support the contention and in an earlier case reported in Russell on Crimes, 7th ed., 1483, Rex v. Cordy (1832) Littledale, J. is reported as saying:

"In a case on the early part of this circuit, the only evidence was recent possession, and the counsel for the prosecu

App. Div. 1919

Rex

tion urged that that was evidence of receiving, but I held that it was not. I hold it essential to prove that the property was in the possession of some one else before it came to the prisoner; here the prisoner said some one brought the skirt to Harvey, C.J. her; that is an admission that it had been in the possession of some one else. That is evidence of receiving."

V.

Scott

It may be observed that there is in this case as in that evidence of such admission, and therefore something more than recent possession. Counsel also relies on a statement in Rex v. Lamoureux (1900) 4 C.C.C. 101. When at p. 104 it is stated:

"Upon a charge for receiving stolen goods, there should be some evidence to show that the goods were in fact stolen by some other person and recent possession of the stolen property is not alone sufficient to support such a charge, as such possession is otherwise evidence of stealing and not of receiving" and reference is made to Russell, as above.

The only question before the Court in the Lamoureux Case, supra, was whether on a charge of housebreaking and theft a conviction of receiving could be made, and the Court was pointing out that something is involved in receiving that is not included in theft, and that therefore on a charge of theft a conviction of receiving cannot be rendered.

The case of Reg. v. Langmead (1864) 9 Cox C.C. 464, L. & C. 427, 10 L.T. 350, which was a case of conviction of receiving, was also relied on and in Rex v. Curnock (1910) 24 Cox C.C. 440, the present Lord Chief Justice said that that case is always regarded as a leading authority. It was decided by a strong Court of five Judges and in my opinion it decides expressly that recent possession alone is evidence of receiving as well as of stealing. Pollock, C.B. at p. 467 (9 Cox C.C.) says:

"The distinction between the presumption as to felonious receiving and stealing is not a matter of law. No doubt, upon the evidence, no other person than the prisoner appears distinctly to enter into the transaction, and all that appears is that the prisoner was found very recently in possession of the stolen sheep. That, prima facie, is evidence of stealing rather

than of receiving; but in no case can it be said to be exclusively such unless the party is found so recently in possession of stolen property, and under such circumstances, as to exclude the probability of receiving."

App. Div. 1919

Rex

V.

Scott

Each of the other judges declares himself to be of the same Harvey, C.J. opinion and Blackburn, J. adds:

"As a proposition of law, there is no presumption that recent possession points more to stealing than to receiving. If a party is in possession of stolen property recently after the stealing, it lies on him to account for his possession, and, if he fails to account for it satisfactorily, he is reasonably presumed to have come by it dishonestly; but it depends on the surrounding circumstances whether he is guilty of receiving or stealing,'

And Mellor, J. says:

"In this case I think that there was evidence on which the jury might have come very fairly to the conclusion of either stealing or receiving."

On the authority of that case, I think it cannot be said that the recent possession, even apart from the statement that the stolen bond had been received from someone else, was not evidence of receiving.

This view is also supported by the decisions or dicta in Rex v. Thornton (1909) 2 Cr. App. R. 284, and Rex v. Lum Man Bow (1910) 15 B.C.R. 22, 13 W.L.R. 345, 16 C.C.C. 274 in the Court of Appeal of British Columbia. The case of Rex v. Poolman (1909) 3 Cr. App. R. 36, goes much farther than to decide that it is evidence. In that case the jury were told, that if the prisoner had not given a reasonable explanation of his possession then the law says you must find him guilty of receiving this property knowing it to have been stolen, and the Court of Appeal held that was not a misdirection, but this is scarcely consistent with the decision in Rex v. Schama and Abramovitch (1914) 84 L.J.K.B. 396, 11 Cr. App. R. 45, 112 L.T. 480, 31 T.L.R. 88.

We then come to the other contention that the accused having given a reasonable explanation of his possession he was entitled to an acquittal.