COURT OF APPEAL.

New Zealand Times, Volume XXXIII, Issue 5348, 18 May 1878, Page 3

COURT OF APPEAL.

Friday, Mat 17. (Before their Honors the Chief Justice, Mr. Justice Johnston, and Mr. Justice Williams). ; REGINA V. BIMOAN3. . • This was a Crown case reserved. Mr. Chapman for Simoana. _ _ ; The prisoner-had been convicted at Christ- ' church on " a charge :of altering and uttering ; a cheque. He had 'received a cheque, signed by 0. A. Ulrich, for £3, and this was altered to £39 in the figures, but the body had not. been tampered with. The; prisoner was tried bn four counts. First, he S was charged with having forged a certain order for payment of £39 ; second, with . uttering a forged cheque for £39 ; third, that having possession of a cheque for £3, he feloniously altered it by adding the figure 9 after the figure 3 ; and the fourth count : was for uttering the cheque so altered,At; the trial thq i prisoner’s counsel called au officer of the bank, • who stated' that the cheque would not have ■ been : pald until the bank.was'Satisfied of its ,authenticity, and they would only pay by the words. Counsel below contended that the prisoner must be' acquitted oh 1 the two first counts, because the document was not , a cheque for £39, Judge Williams directed the - jury to acquit the prisoner on the first ;two counts, and reserved the question raised on the third and fourth counts ns to whether the prisoner ought to be convicted under the circum- • : stances. :He directed the t jury that if the • prisoner had acted with intent to defraud they ' should find him guilty, on the last two counts.* ' The jury were asked to give a specific answer to this question: “Has the cheque such a’ resemblance to a genuine document as would be likely to' deceive an ordinary person 2” They answered in the negative. Mr. Chapman submitted that the verdict of, -' the jury was virtually one of not guilty, and ought to have’been so entered upon the record. ; . Judge Johnston : The only question for us is whether the conviction is bad in the face of the finding of the jury. ■ , , , ‘ ■ x:. : Mr. Chapman contended that the alteration was not one that would change Urn character of the document; in other words, it was not material. The alteration must be in a material particular to constitute forgery- Regina ■ v. Treable, 2 Taunt 328; Sauuderson v. Piper; • 6 Bing, N.O. ■125. An alteration of the figures in a cheque could not be material, as the direction to pay was contained in the body. Judge Johnston : The proposition you ' have to ■ establish is this, that a thing ceases to be a forgery if nobody could be deceived by it. Mr.'Chapman cited Chitty on Criminal Law rob 3, page 1038, as in favor of the, view that it would not he forgery if a person could not reasonably be deceived by .it., Regina v. Wall, 2 East’s P. 0.; 951, in which a . will was held not to be a forgery, it being improperly executed. , ; The Chief Justice : , You say it was a cheque , for £3, and it has never ceased to be so. Mr. ,Chapman : That is my contention.- ; Judge Johnston: To which it may ■be answered, quite true,' as between the parties; but this person falsified the cheque with intent to defraud. 'V' Mr. Chapman : Regina v. Marcus, 2 C and K, 358, shows that there must .be a probability that some person might be deceived, but the jury here expressly said that no ordinary person would.be deceived. ; The Court reserved judgment. .. REGINA V. BARNSLEY. Crown case reserved. The prisoner, Arthur Barnsley, had been convicted at the Circuit Court, Wellington, in January last, of forging a money order for £lO, purporting to be sent through the Telegraph Office, from J. Mills, . Dunedin, to J. Wilson, Wellington. Sentence was’ postponed pending the hearing .by. the Court of Appeal ,of a case stated. It was contended in the Court below that the prisoner could'not be convicted, because the forgery was not .that of .au order for the payment of money, but of a telegram of an order. That the document lodged at the Dunedin office was the order, and that the document B, issued to the. payee, was not an order. Further that ■;: even if the documents issued from the'Welling-, ton Telegraph Office were the...order and advice, and not mere telegrams of such, the advice and not the order was the “order” for payment, and that it was not produced in evidence, and its destruction was not sufficiently proved to allow secondary evidence of it. . The Chief Justice, who presided at the trial, overruled the objections, and directed the jury that if they found; that the prisoner' forged the document E, and that it was the authority npon the production of which the office would pay the money in a genuine transactiou, then the prisoner should. be convicted of having committed forgery. That it was not necessary to produce the advice, and if necessary, its non-production had been sufficiently accounted for without proof of actual search, as the time had long since elapsed when in the ordinary course of the office it would have been destroyed; for the trial was in January, 1878, and the forgery in May, 1877, a period of more than three months. The questions for the opinion of the Court of Appeal were—Whether the document E was, under the circumstances, an order for the payment of money within the meaning of the 23rd section of the Forgery Act, 1867; and whether the. production of .the advice was 'necessary and its non-production was snfficiently accounted for. ' The document E was as follows Hew Zealand Te'exraph. Money order telegram. Name of issuing office, Dunedin. Received the within amount. , Jno. Wilton. Older, jC/J.- , Amount, £lO. J* lVilso)i f iVo. The jiotimmlcr, Wellington, will i>ay you ten pounds. J. Mills, remitter, Dunedin, The portions in italics were in the prisoner’s ■ handwriting, the rest being printed Mr. Fitz Gerald appeared for the _ prisoner, and Mr. Izard to support the conviction. Mr. Fitz Gerald questioned whether a telegram could. he the subject of a forgery. The message delivered could not be iu the hand--1 writing of the; sender, hut in that of a clerk,at the receiving office. Where the signature of a person was required, a telegram could not bo used, and the Telegraph Notices Act, 1872, was passed to bring telegrams into legal use.' Telegrams were actually copies ef a document, and as such , could not be the subject of a forgery. In the books there were but few cases as to telegrams.; Godwin v. Francis, 39 L.J., C.P., 121, went to show that to bind a contract the original lodged at the transmitting station ' must be used, and not the copy received. Henekel v. Pape, 40L.J., Ex. 16, was to the effect that the sender was not liable for mistakes, and therefore the message lodged was the only document, of authority- ; The document E did not purport to be an order, and ;it - wasnotone.' The signature did not purport to be that of J. MiUs. but merely showed that ■ those words had come along the wire. ;, Tele* grams could not possess; the effect of original documents tinless by statute, and there was no Such Act in the colony. In England telegrams for certain purposes ranked as “ Post Letters,” 32 and 33 Viet., see. 23. The document produced at the trial, the handwriting in which was proved to bo the prisoner’s, was the - « order” relied on by the prosecution. Asto the meaning of the word “ order ” it was laid down in B. v. Mitchell, Foster, 119. He also cited K;' v. 'Mitchell, 2 F and F, 44, as to what was an order. E. v. Bllar, 1 Leach, 323. • E. v. Clinch, 1 Leach, 540. These cases ■ went to show that the sender of a document ■must have an interest in the subject matter of the. order that his order could affect. It must purport te be made for the purpose of obtaining the money, and there must be something compulsory on,the part of the drawee to ' pay.: It must bo addressed to the drawee,—at .least it must hot be specifically addressed to any one else. E. v. Gilchrist; 2 Moody, _ 233. Post-office orders were held te be “ orders, but they ran :—“ Credit the person named m my letter of advice also E. v. Vandcrstein, 10 Cox., 177. He submitted that the so-called “ order ” B had,been sent by a person who had parted with all control over the money. Ihe post-office officials would not pay on E without .advice. If it were held that B was not an "order the prosecution would be thrown hack bn the advice or order to the post-master. That was not produced at the trial, and there was not sufficient evidence of search or destruction. ' Eegina v. Hall, 12 Cox, 159. The Chief Justice said it was not necessary te argue this point, seeing ho did not think it had been put to the jury at the trial. , The prosecution must rely entirely upon document B. * .... Mr, Izard, in support of tno conviction, said, as te the first point, an instrument otherwise valid might ho forged by making an alteration; in it. It was not essential that there should be an actual forgery of the haudwritingof any individual. The meaning of a was that it was a false document.; ' Godwin v, ■ Francis was in his favor. The document E, which was relied upon by the prosecution, was an order by the remitter to the,’agent of the, ■person te whom he paid .the money. to pay it ■ out to the remittee. ' There was nothing on.

the face of U to connect it with .any other .document. It was the usual course of busi- ' ness with - mercantile men and others to honor documents like that; and It must ho taken as

supposed to he addressed* to'the postmaster. Eegina v. Kay, 1; C.C.R., 257. It did not matter what a document was, called, and if it had been the custom of the office to treat isuoh documents as orders it must be considered to he an order. Ho cited Eegina v. Vivian, C. and E;, 719 ; Kegina v. Raake, 8 0. and P., 626; Eegina v. Harris, 2 Moody, 267. • Judgment was reserved. The Court then adjourned to Wednesday next. ’ . ■