SUPREME COURT.

Globe, Volume IV, Issue 334, 8 July 1875, Page 2

SUPREME COURT.

CRIMINAL SITTINGS. Wednesday, July 8. (Before His Honor Mr Justice Williams.) EMBEZZLEMENT. The following is the remainder of the report in this case : Mr Joynt then called Mr Lingard for crossexamination. Witness—l have been clerical secretary to the Synod for six years. The gentlemen whose eight names have been read by you forming the original trustees, have retired two by. two, and have either offered themselves for re-election under the Ordinance or successors have been appointed, I could refer to the minutes of Synod as to the election of trustees.

Mr Joynt—l wish you, Mr Lingard, to go through the minutes from 1867 to the present time, and give me a record from those minutes of the election of the trustees on each occasion. Witness —I can do so, but it will take gome time. I am not aware that any trustees have been elected by the standing’coramittee. The witness then proceeded to quote from minutes of Synod as follows:—1868 —Rev J. C. Bagshaw and Mr R. J. S. Harman retired, and were re-elected by vote of Synod; 1869 —Canon Wilson and Mr T. W, Maude were elected: 1870—Very Rev the Dean and Rev W. W. Willock retired and re-elected; 1871— Messrs W. Donald and G. Gordon were elected to fill the vacancies caused by the dsath of Mr C. Davie and retirement of Dr Donald; 1872—Rev J. G. Cholmondeley and Mr G. Hart retired by rotation and were re-elected. I have not heard of the confirmation of the election of these two "gentlemen by the standing commission. lean produce no evidence of their election as Church Property Trustees prior to 1872, when they were re-elected by Synod after retirement. I am not aware whether in any case the Synod confirmed the appointments of trustees made by the standing committee. In 1873 Yen Archdeacon of Christchurch and Mr T. W. Maude retired, and the Yen Archdeacon of Christchurch and Mr R. Cobb elected by Synod to fill the vacancies. 1874—The Very Rev Dean, Rev W. W. Willock, and Mr Hassall were elected to fill the vacancies. The reason why there were three vacancies was that Mr Cobb died in September, 1873, and the Synod sat in October, so that vacancy was filled up by Synod in. aossion. T find on reference to minutes that I was mistaken as to the vacancy caused by Mr Cobb’s death. This was filled up by the standing commission by appointing Mr C. B. Blakiston, but I do not know whether this appointment was ever confirmed by the Synod, unless the receipt of the standing committee’s report can be called a confirmation. The minute is to the effect that the report of the standing committee be received and laid on the table. The vacancies in 1874 were caused by the retirement by rotation of the Yery Rev the Dean and Rev W. W. Willock, and the resignation of the Yen Archdeacon of Christchurch.

By Mr Duncan—l can produce the minute books of the standing committee. Mr Joynt objected to the witness giving evidence as to this minute book, as he did not keep it. His Honor sustained the objection. This was the case for the Crown.

Mr Joynt—l now contend, your Honor that the indictment preferred lay the Crown must fail, on the following grounds :—lst. That it has been shown by evidence before the Court that the Church Property Trustees are trustees for religious purposes, and it is also shown that several vacancies have from time to time occurred in their body, and it ie also shown that these vacancies have been filled up in a manner contrary to the provisions of the Religious, Charitable, and Educational Trusts Act, 1856, that therefore they cannot be said to be elected according to the mode set ferth in the Act endowing them, that the Church Property Trustees are not at present constituted according to law. I shall also object to the indictment on other grounds, one of which is that the Church Property Trustees were incorporated by an Ordinance of the Provincial Council in the year 1854 ; by that Ordinance it was provided that the Corporation should consist of a certain number of persons in conjunction with the Bishops, and also of the clergy of the Church officiating in the settlement under the license of the Bishop ; a number of lay persons were also associated in this corporation, and constituted a body corporate and politic by the name of the Church Property Trustees by the second section of the Act. By the 11th section it is set forth that it should be lawful for the Canterbury Association to convey to the said corporation so constituted certain lands, &c, for ecclesiastical and educational purposes. The Ordinance of 1867 repealed .parts of that of 1854, but not all ; and further, it does not create a new corporation, but alters the constitution of an existing corporation. It alters the constitution of the corporation, I would desire to point out to your Honor, by doing away with the clerical members appointed under the Ordinance of 1854, in that it repeals the sections referring to them altogether ; thus, as I contend, providing for an alteration in the constitution of an existing corporation. Now, your Honor, I submit that the Provincial Council had no power, either then or subsequently, to alter the constitution of any corporation. The Act, to which reference has been made by my learned friend, the Pro-

vinCial Ordinances Validation Act, does not I contend, give power to the Provincial Councils to alter the constitution of corporations already established, 1 would point out to your Honor that the second section of the Ordinance of 1854 is dealt with in two ways by the Ordinance of 1867, inasmuch as pait of it only is repealed. There can be no doubt, of course, as to the power of the Legislature creating an Ordinance to repeal it, should it deem fit so to do but I again contend that the part of the clause of the Ordinance of 1867, which alters the constitution of the body corporate, known as the Church Property Trustees, is ultra vires . I contend that the section of the Act of 1854, which constituted the Church Property Trustees has been repealed, and therefore is not in existence, and the repealing Act is ultra vires for the reason stated by me, that the Council had no power to pass it, inasmuch as it contained a provision to alter the constitution by providing a different method of succession, and also altering the succession to real estate as settled by the Act of 1854. Though the Provincial Council had power to pass an Ordinsnce creating a corporation to be called the Church Property Trustees, it had no power to give them a new constitution as provided in the Ordinance of 1867. It is true that the Act of the General Assembly of 1865 gives the power to create corporations, but it does not give any power to alter their constitution ; hence the Ordinance of the Provincial Council is repugnant to the Act of the General Assembly, and must be held to be ultra vires. Therefore, I contend, on the whole, that the Church Property Trustees have no legal existence, and hence the indictment charging the prisoner with having embezzled their property must fail.

His Honor—l think I have already disposed of the first ground of your objection, Mr Joynt, in the former argument. It therefore remains to see what are the grounds of your second objection So far as I understand it, your contention is that the Ordinance of 1867, repealing a portion of the Ordinance of 1854, and amending others, is ultra \ires. on the ground that the Provincial Council, while having power under the Act of the Assembly to create corporations cannot alter their constitution. I may say that I consider it is quite competent for the Provincial Council, not only to abolish a corporation altogether, but also to remodel it. The effect of the Ordinance of 1867 is, I take it, the abolition of the old corporation and the substitution of new corporators, and a new mode of election. Well, if it is admitted, as I believe it is by you, Mr Joynt, that it is competent for the Provincial Council to make an Ordinance creating a corporation and to repeal .the same, then I think it is quite competent for the same authority to re-construct the Ordinance creating the corporation. The enactment of the Ordinance of 1867, it seems to me, amounts to the same thing, as if the Council had swept away the old corporation and had created a new body in which the property could be vested. Therefore, I cannot at all go with you, Mr Joynt, in your contention that the Ordinance of 1867 was ultra vires. As to your first objection there is prima facie evidence of the existence of the corporation of Church Property Trustees, as the Ordinances of 1864 and 1867 have been put in by the Crown. As I stated on the previous argument, if it is desired on the part of the defence to rebut this evidence, it must be shown either that the corporation, as such, does not exist at all, as attempted to be shown by the learned counsel for the defence, or that it has been dissolved by the removal of some integral portion of it, so as to prevent it being remedied. The first of these points I have already overruled, so that there only now remains the second. There may be a dissolution of a corporate body by all the members thereof resigning, or an integral part of it, without any chance of renewal. Now the facts are that this body corporate was created by an Ordinance of the Provincial Council in 1854, which, as the learned counsel for the defence has stated, was partially repealed by an Act of 1867. The contention of Mr Joynt is that no corporate body has been put in the place of that repealed by the Act of 1867, inasmuch as the election of successors to trustees has not been carried out in accordance with the Act of the General Assembly under which the Provincial Council derives power to create corporations for special purposes, hence that the corporation is dissolved and has no legal existence. I don’t, however, think that there is any evidence before the Court that the corporation has been dissolved, either by all the members ceasing to be members or an integral part thereof, although the election took place under the Act of 1867. I may say that I am strongly of opinion that the election of successors to retiring trustees should take place under the Act of 1867, because the Keligious Charitable and Educational Trusts Act was, to my idea, for the purpose of creating a qtiasi corporation for want of existence of a corporation, and that therefore the existence of a corporation does not clash with the Act of the General Assembly at all. The counsel for the defence has called evidence to show that the trustees were appointed by Synod to fill vacancies, and has contended that as this was opposed to the Act none of the appointments were valid, hence the body did not exist; but I should be inclined to hold that so long as the Bishop remained—the chairman—who is an integral portion of the body, the corporation must be held to exist. I must therefore overrule both objections. Mr Joynt—Your Honor will take a note of my objections, and reserve the points should the verdict be against the prisoner. His Honor—Certainly, Mr Joynt. I will reserve the points for the Court of Appeal. Mr Duncan shortly addressed the jury, contending that the admissions of the prisoner and the evidence led by him were quite sufficient for the jury to return a verdict of guilty. Mr Joynt, in defence, said he desired first to quote to the jury from “Bussell on Crime” as to the law relating to embezzlement. He would contend that as there had been no falsification of books, on the contrary, that the evidence showed that the prisoner had entered every pound as he got it, they could not find him guilty. (The learned counsel quoted at some length cases from “ Russell on Crime” to prove his contention.) There was, however, one important point to which he desired to direct their attention. Hia learned friend had said that there was strong evidence upon which they should convict the prisoner, but he defied him to show one tittle of evidence that the specific sums charged against the prisoner in the indictment had not been paid into some other fund besides that of the Bishopric estate. It did not matter what fund, so long as it was paid to the credit of the Church Property Trustees, the masters of the pri-

Boaer. There was no stiteme .t of the dutie' of the steward, nor was there any written or specific instructions as to different funds That was merely a matter of convenience. Well, now what did they find ? Why, that Mr Fowler, the skilled witness called by hiflearned friend, had stated on his oath thal he could not swear from his examination of the books kept by the prisoner that the sums charged in the indictment had not been paid in to the credit of the Church Property Trustees in some other fund. Indeed there was positive evidence before them that Mr Fowler had traced the cheque for £IOO, laid as one of the counts of the indictment, as having been paid by the prisoner into the credit of the Jackson Trust Estate. He could not trace any of the other amounts, because they were in cash, but the fact remained that there was not a tittle of evidence that the amounts had not been paid to the credit of the prosecutors, although not to the particular subdivision of the whole funds of the church. Therefore he said that they were bound to acquit the prisoner, because there was evidence that one amount of £IOO had so been paid by the prisoner. They must recollect that they had no right to take notice of what had, as he thought been very unfairly urged by the Crown Prosecutor, viz., the general deficiency. What they had to satisfy themselves about was, that these specific amounts had been embezzled by the prisoner, and he again asserted that there was not one tittle of evidence that these amounts had not all been paid into the credit of the Church Property Trustees. It did not matter whether it was paid to one fund or another, so long as it was paid to the general credit of the Church Property Trustees, who had the general control of all the funds of the Church, they could not find the prisoner guilty of embezzlement. He confidently looked to them under these circumstances to acquit the prisoner. His Honor summed up. The question for the jury was whether the money had been stolen or embezzled; and if they were of opinion that the prisoner had embezzled or misappropriated the money the fact of the prisoner not having made false entries would not preclude them from finding the prisoner guilty. As regarded the count for embezzling £IOO, he was of opinion that the evidence had not supported it, as it was shown that the prisoner had paid the money into another fund, the Jackson Trust Estate ; therefore he did not think the jury could convict on that count. On the other two counts it was for the jury to consider on the evidence whether the prisoner had embezzled those two sums. It was also for them to consider whether the prisoner had paid any of these sums into any other fund belonging to the Church Property Trustees. If they thought he had done so they would acquit him. As regarded the point of general deficiency, it was true that this was not a material element in proving embezzlement, but it went towards showing deficiencies on special sums. He would now briefly go through the evidence, and then leave the case in their hands. [His Honor then proceeded to read over and comment upon the evidence given in the case.] The jury then retired, and after a short absence returned into Court with a verdict of “ Guilty on the first and third counts, and not guilty on the second.” Mr Joynt applied, under the Court of Appeal Act, for arrest of judgment, in order that the points raised by him on behalf of the prisoner might be argued at the Court of Appeal: His Honor—l shall reserve judgment under the Court of Appeal Act, 1862. In the meantime the prisoner must go to prison, as I refuse to accept bail. Mr Joynt—Your Honor will not accept bail? His Honor—No, certainly not. The points raised by you will be submitted to the Court above. The prisoner was then removed. SENTENCES. William Hudson was brought up to receive sentence in the case of shopbreaking and larceny, of which he had been found guilty on a former day. The prisoner made a long and eloquent appeal to his Honor for clemency, and handed up testimonials for his perusal. His Honor said that there was no doubt that at one time the prisoner had occupied a very respectable position in society, but still there could be no doubt that drink had had a great deal to do with his conduct since coming to the colony, as he had been twice convicted of felony. Under these circumstances it would only be a merciful thing to him to place him in a position where he would be removed from temptation. The sentence of the Court would be that he, prisoner, undergo penal servitude within the colony for five years. Patrick Broderick was placed at the bar to receive sentence for horsestealing. Mr Joynt said that he had been requesetd by the prisoner to call his Honor’s attention to the peculiar features of the case. He (the prisoner) had no knowledge at the time of the owner of the horse, or he would have immediately returned it. His Honor said there were extenuating circumstances about the case, and be should therefore pass a light sentence. The sentence would be that the prisoner be imprisoned at Lyttelton for six calendar months, with hard labour. The Court then adjourned until 10 a,m, this day. This Day. The Court reopened at 10 a.m, EMBEZZLEMENT, Frederick Pavitt was placed at the bar, charged with having on the 11th January last and the Ist Ma rch respectively embezzled two sums of money, viz, £25 and £54 10s, the property of the Right Rev Henry John Chitty Harper and others, his masters. Prisoner pleaded “Guilty.” Mr Joynt—After the plea which has just been recorded, your Honor, I wish to ask you not to postpone judgment on the points I raised yesterday. If you be good enough to allow judgment to go. His Honor—l may say that I reserved those points, Mr Joynt, more out of courtesy to yourself than from any feeling that youfi objections could be sustained. In fact, lam strongly of opinion they could not be sustained in the Court of Appeal. I will now proceed to pass sentence at once. Mr Duncan intimated that he would not proceed against the prisoner on the other cases in which true bills had been found by the Grand Jury, Prisoner on being asked if he had anything to say why the judgment of the Court should not be passed upon him, read the following statement ;

“Your Honor, —I wish to make the following statement to explain how |I was led

into committing the wrong which I have done, and for which I feel the deepest sorrow. In 1868, I was induced to join another person in the preparation of flax fibre. We had very little money with which to commence the enterprise, but the prospects of profit were so good that we had no difficulty in making arrangements with merchants here to advance money on the material to be sent to the English markets, and through the flourishing accounts of the value of the fibre which came to hand by each mail, we were tempted to extend our operations until we had three mills at work. We soon found, however, that the advance for which we had agreed was not nearly sufficient to pay working expenses, and from various causes there was |great delay in shipping the material to England, consequently it was nearly eighteen months from the time of our commencing the business before any of our fibre was sold, and then, to our dismay, the price had suddenly gone down to less than half that current when we started. In the meantime we had got into arrears with our workmen (of which we had then upwards of eighty), and our liabilities for machinery, &c., had accumulated to a large sum; but we were told, and it was very generally believed, that the fall was only temporary, and that the price would soon rise again. The merchants then advised that we should close the mills for a time, upon which advice we acted—(l here wish to state that shortly after the commencement of our business the whole management of it rested with me) —and the managers of the several mills at once gave the workmen orders on me for payment. Feeling quite overwhelmed, I went to the merchants, who gave me some help, but not anything like sufficient to answer their demands. I can, with truth, say that had I then been the only person concerned, Ishouldhave done as others were doing to free myself of my obligations, but my partner being a clergyman with a large family, and in ill-health, I thought it not unlikely that such a humiliation would cost him his life. I was then, I regret to say, tempted to, as I considered, borrow out of money in my hands to tide over the pressing difficulty, hoping by each mail to receive funds to replace what I had appropriated (little thinking it would lead to such disastrous results); but was disappointed, and instead of the value of flax improving it got worse, and brought many who were engaged in it to bankruptcy which caused all to whom we owed money to press for immediate payment. It was then too late for me to go through the Court, as I could not do so without exposing what I had done. Every pound I have appropriated has gone in this way, as well as a large part of my yearly income. Were it not on account of my family, on whose behalf I considered all that could be done should be done to prevent my being taken from them, I should not have troubled the Court to have tried my case. I wish to say that no one knew of my wrong doing, and it has been a very bitter load to me. Again expressing my sorrow for having yielded to temptation, and for the loss it has caused others, I leave my case in your Honor’s hands, in the hope that for the sake of my wife and family you will extend to me whatever mercy it is in your power to show “ Frederick Pavitt.”

His Honor—Prisoner at the bar, you have been arraigned on two charges of embezzlement, on the first of which you have been found guilty, and on the other you have pleaded guilty yourself. Your crime is very different from that of a poor or ignorant man who might perhaps be taken to have to some extent at least, extenuating circumstances for the crime. But you are a person of superior education, of outward respectability, and you were placed in a position of trust, and that position you have grossly abused. I have heard what yon have said in mitigation of acntcncc, but I may say that what you have stated does not in any way extenuate your crime, I should be wanting in my duty if I did not pass such a sentence in this case which will act as a deterrent to others in similar positions. The sentence of the Court will be that you be kept in penal servitude within the colony of New Zealand for five years on the first charge; on the second charge the sentence will be five years’ penal servitude within the colony; the sentence to commence at the expiration of the first term. The prisoner was then removed. LARCENY AS A BAILEE,

Charles James was indicted for having on or about the 14th December last, then being the bailee of certain moneys the property of T, G. Verrall and others, trustees of the Loyal City of Christchurch Lodge, No 4602, of Oddfellows, fraudulently converted the same to his own use.

The prisoner, who was defended by Mr Joynt, pleaded “Not Guilty.” Mr Thos. Lowe was chosen foreman of the petty jury. Mr Duncan prosecuted on behalf of the Crown, and briefly stated the case, calling evidence as follows:

Harry Feast—l am inspector of the detective force. Some time ago I received a warrant for the arrest of the prisoner. I traced him through Australia to Fiji, and then back to Auckland, where he was arrested.

Stephen Harper—l am secretary to the Loyal City of Christchurch Lodge of Oddfellows in Christchurch, I know the prisoner. I remember the 14th December last; on that night prisoner received £59 Os lOd. Mr Duncan asked the witness for what purpose the amount was handed by him to prisoner. Mr Joynt objected to this question. If the Crown asked this question the witness must either show that there was a written or printed document defining the duties of the prisoner, or that he had distinctly told the prisoner what he was to do with it.

Mr Duncan contended that as it was his intention to show this, his learned friend should not be in such a hurry to object to the question. Mr Joynt said his learned friend should put in a document to shew this or give evidence of it.

His Honor said, of course the Crown would have to shew that money was handed to the prisoner for a specific object, of which prisoner was aware, and that he did not so apply the money. The question was a fair one.

Witness—l handed the money to prisoner, as treasurer of the Loyal City of Christchurch Lodge, to make payments as set out in the bye-law.

Mr Joynt objected to his learned friend asking the witness questions, which he could only answer by reference to the bye-laws, without putting in those bye-laws. Witness—There was no specific purpose mentioned to the prisoner on that special

night. His habit was to pay accounts on behalf of the lodge, and place the balance over £2O in the Bank of New Zealand. He paid £2O 2s 8d out of the £SO Os lOd, on account of the lodge. The balance was not paid into the bank, nor has it been accounted for. The money belonged to the Loyal Ci'y of Christchurch Lodge, 4602, 1.0. 0.F., M.U, On November 30th, I made a payment to the prisoner, which was not paid into the bank to my knowledge. The prisoner has been in the habit of receiving monies from me since October, 1872. I cannot say, from my own knowledge, that between that date and Sthe 30th November last, prisoner was in the habit of paying the money into the bank. Cross-examined by Mr Joynt —The Loyal City of Christchurch Lodge is, I believe, a registered Society under the Friendly Societies’ Act.

By Hia Honor—The amount of £2O 2s Bd, paid by prisoner was under the vote of the Lodge, and it was his duty to do so. His Honor asked Mr Duncan whether it was not necessary for the Crown Prosecutor to prove that the specific coins had been held as a bailment. The case of Lee v Karge was very strong in this direction. Now in this case there was evidence that the prisoner in course of his duty paid away certain monies, hence unless the Crown could prove that the identical coins had been held by the prisoner in bailment, the indictment for larceny as a bailee could not be sustained. It would be necessary for the Crown to shew that it was the prisoner’s duty to pay into the bank the identical coins he received in order to sustain the indictment.

Mr Duncan said he intended to prove that the prisoner’s duty was to pay the money into the bank, and he had not done so. However he would call another witness.

Thomas Gibbon Yerral—l know the prisoner. I belong to the Oddfellows’ Society. I remember the 14th December. I cannot say whether the prisoner received the £59 Os lOd of my own knowledge, as I was not present that evening. James Taafe—l am a member of the Oddfellows’ Society. I was at the City of Christchurch Lodge on the 14th December. I do not know of my own knowledge who received the money that night. The treasurer was there, and the signature now shown to me is his. These are the byelaws of the society. [Produced.] They are signed by the prisoner and also by me. In rule 4 the duties of the treasurer are defined. The prisoner was treasurer. Winslow Woodward —I am a clerk in the Bank of New Zealand. The Loyal City of Christchurch Lodge has an account there. I produce the ledger with that account. There was a payment on the 17th December £7 14s, and on the 29th December £ls 14s. This was the case for the Crown.

His Honor said that the jury would have to return a verdict of acquittal, as the objection taken by Mr Joynt was fatal, the Crown not having been able to show that the prisoner was a bailee, viz, that the prisoner had specific coins handed to him for a specific purpose. Even had the Crown indicted the prisoner for embezzlement, it could not have been sustained, as under the law now existing, the treasurer of a friendly society was not the servant of the society ; hence a treasurer of a friendly society could rob it as much as he pleased without incurring any legal penalty. He regretted that the case should have gone off on a technical point like this, and that the law was such, but there was no alternative but for the jury to return a verdict of Not Guilty. Under direction of his Honor the jury returned a verdict of “Not Guilty ” and the prisoner was discharged. The Court then adjourned till Monday, July I9th, at 11 a.m.