Harnam Singh v. R., Crim. App. 97-D-68, 2/5/68, Biron J.

Harnam Singh v. R., Crim. App. 97-D-68, 2/5/68, Biron J.

Appellant, the second accused, was convicted of receiving stolen property; the first accused, who was convicted of stealing and fraudulent false accounting has not appealed. The evidence was that the first accused, who was a teller at the National Bank of Commerce, City Drive Branch, would cash checks for the second accused drawn on the Masdo House Branch. The first accused would hold a check until a subsequent check was drawn, and the proceeds of the second check or a part thereof would then be deposited in the Masdo House Branch to cover payment of the earlier check. There was some indication that these transactions were intended by the accused to operate as unauthorized short – term loans, and in fact all of the money was repaid.

            Held: (1) Even if there was an intent to repay, the payments amounted to stealing by the first accused. Penal Code Section 258(2) provides, “A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with … (e) in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner.” (2) In order to be convicted of receiving  stolen property, an accused must know or have reason to believe that he property was in fact stolen. [Citing P.C. s. 311(1); D.P.P v. Nieser (1959) 43 Cr. App. R. 35. (3) Ignorance of this rule of law would not be a defence of the first accused on the maxim ignorantia juris non excusat. “(I)n the case of the second accused, as the requisite guilty knowledge is an essential ingredient of the offence receiving, his ignorance of the law would constitute a defence, as in his case the maxim ignorantia facti excusat would apply.” As such “borrowing” is not within the normal conception of theft held by laymen, and as the trial magistrate did not consider the point, it cannot be said on appeal that the requisite guilty knowledge existed. Conviction of second accused quashed.