COURT OF APPEAL.

New Zealand Times, Volume XXXIII, Issue 5357, 29 May 1878, Page 2

COURT OF APPEAL.

Tuesday, May 28. (Before their Honors the Chief Justice, Mr. Justice Johnston, Mr. Justice Richmond, Mr. Justice Gillies, and Mr, Justice Williams), p BEGINA’ V. BEOWN. A Crown case reserved. ■ ; The prisoner, Henry Brown, was indicted in the District Court ’at Queenstown,’ Otago, for stealing and embezzling 64 ounces of gold, the partnership-property of i himself and one John Mellor. At the trial the prisoner’s counsel demurred to the stating that he relied upon a judgment givenfby Mr. Justice Richmond at; Nelson, in April, 1872,C0rn a similar case, holding that under , the Larceny ret Amendment Act, 1870, a partner, could ot be indicted for stealing partnership proerty; in other words, holding that the : Act of 870 was a dead letter. ... , .’ ■ :

The indictment ia the present case .con-.. tained four counts. , , The first alleged that the . prisoner “feloniously did steal, take, and carry away*’ the. gold, &c. The second, alleged that ho “did steal, take, and carry away” the gold. The third alleged that’he “feloniously did embezzle” the. g01d.,. The . fourth count alleged that he “ did embezzle " the said gold. ~ ■ ■_ , The prisoner demm'red to the indictment for.' that it was, not sufficient in law, and prayed th»t he might be discharged. . . ... The Crown Prosecutor, in reply, averred F that the indictment was sufficient.; ■ . ;

The judgment in Regina’v. Law, by. Mr. Justice Richmond, concluded 'thus: —? Plain as it is that it (the Larceny .Act Amendment Act, 1870) was meant to render punishable acts such as that of the prisoner, -the; Legislature has neither made his fraud a substantive offence nor stamped it with'the; character of any existing species of crime ; at least, of any existing felony. No Court of > Law can supply such a defect in the , expression of the will of Parliament..; As it appears on the face of the indictment that the; gold belonged to the co- s partnership, and that the prisoner was one of the partners, there is error apparent on tha record, and the District Court must arrest judgment in accordance with the motion i made : here for that purpose.” ’ - r ; The Attorney-General (Mr. Stout), who ap- ' peared to support the indictment, stated that he relied on the first count. , He submitted that the words of the statute mush be considered in their popular sense. Tho title to the Act might be looked to if if gave any in- ’ terpretation of the statute. The Court must look at the whole statute, and the aim which the Legislature had in passing it. There was no preamble in the New Zealand Act pointing to the object of the statute, yet as the words of the English Act were the same, .that preamble might be referred to as. giving the intent of the New Zealand Act. ■ The word steal really' imported larceny. It was provided by the Act that a person should he tried, convicted, and punished as if he were not a member of the co-partnership. That meant that though a man proved that, he was , a member of a co-partnership it would, not ; affect his. trial,' conviction, or punishment. The text, writers on . criminal law in England. had. assumed' in their works that the statute was sufficient

to support the interpretation he had mentioned, and the decided coses. in England were in the same direction. The statute was meant to remedy the law iu some respect, and without the construction he put upon it, it did not do anything at all. With reference to a suggestion made by the Court that the indictment' was bad because it contained a count for felony and a count for misdemeanor, the Attorney-General said he relied on.the first, count, and, the oi her might be struck out. During the arglimaat. counsel cited — Dwavris on Statutes, Rotter’s edition, 193 ; Hales’ P.C., 513 ; Hawkins’ P. 0., 33 ; East’s P. 0., 562; Stephen’s Digest; 212; Regina v. Rudge, 13, Cox’s C.C., 17;' Russell, voL_ 11., Prentis’ edition, 2X3; Regina v. Davis,, 6 W.W. and A.B. (L.), 246; Regina v. Smith, L.R. 1, C.C.R., 266 ; Regina , : v. .Warbnrton, L.R. 1., C.C.R., 274 ; Regina ,v. Edmund Balls, L-RLI, C.C.R., 328; Regina v. Burgess 9, Cox’s C.C;, 302; Regina, -v. Butterworth, 12, Cox, C.C., 132; Regina v. Evans, L. and C., 252; O'Connell v. the Queen. i The Court reserved judgment.!