MONDAY, FEBRUARY 8, 1869.

Southland Times, Issue 1105, 10 February 1869, Page 3

MONDAY, FEBRUARY 8, 1869.

(Before His Honor Mr Justice Ward). The Court resumed this morning at 10 o'clock. BEGINA V. ATLMEK, SAYEKS, AND M ! KENZIE. His Honor having taken his seat on the Bench, proceeded at once to deliver judgment on the demurrer to the indictment. In this case a true Bill has been found by the Grand Jury against the above defendants, and on being required to plead, they, by their counsel, have demurred to the indictment as not being sufficient in law. The first count of the indictment is to the following effect : — That the defendants conspired to defraud Messrs Abbott & Packhara of certain sums of money. The 15 next counts are framed in the same terms, merely varying the name of the tenderer whom it is alleged that the defendants conspired to defraud. The 17th count charges an intention to defraud in the same manner the whole of the tenderers, and tbe 18th and last substitutes the Superintendent of Southland as the party to be defrauded. It was urged by Mr Smith, counsel for Aylmer, that the indictment is bad on the following grounds : — Ist. That it discloses no indictable offence. 2nd. That the sums of money therein mentioned are not alleged to have been the monies of the tenderers. 3rd. That the allegations of overt acts do not describe any indictable offence, and that it does not appear that the overt acts charged were calculated to effect the object of the conspiracy. Mr Wilson followed on the same side, and Mr Macdonald, for the Crown, was heard in reply. In every indictment for conspiracy, the first requisite is that the conspiracy alleged be clearly and sufficiently stated. But if the conspiracy be insufficiently charged, yet, if the rest of the indictment contains a good charge of misdemeanour, the indictment is good. In this case, the sole question before the Court is, whether the allegation o£ conspiracy contained in the indictment be sufficient ; for, if it be not so, there appears to be no overt act charged constituting an indictable offence. The allegation is, that the defendants " did conspire to cheat and defraud the said C. Abbott and S. Packham (and other tenderers,) of divers large sums of money." It is not here alleged that the money whereof they are to be cheated belongs to them, and it certainly appears from the case Tlegina v. Parker, 3.9. B. 292, that an indictment for conspiring to obtain good, and to cheat and defraud thereof the persons from whom they were obtained, has been holden bad, for not stating whose property the goods were — the Court of Queen's Bench being of opinion that to hold that the use of the words 'to cheat and defraud' necessarily implied that the goods belonged to the parties who were stated to be defrauded thereof, would be letting in a generality, which was not shown ever to be allowed. If, therefore, the indictment had stopped short here, it might possibly have been holden bad on the authority of the abovequoted dictum. But it proceeds further to set forth certain overt acts alleged to have been done in pursuance of the conspiracy; and from these overt acts it would seem that the intention of the framer of the indictment was, in the 17 first counts, not to charge the defendants with attempting to defraud any of the tenderers of monies in their possession, but of the profits that might possibly have accrued to them, or to one of them, in the event of his or their tender being accepted. But this charge is nowhere distinctly made. The overt acts alleged are that the defendants obtained pos. session of the tenders, and opened them, and subsequently prepared another tender of their own, with intent to put it in with the rest. It does not appear what was the amount of the tender thus prepared, nor of any other ; nor is it stated whether the Government were bound to accept the lowest tender, or any tender at all ; nor is there in the indictment any allegation that any one of the tenderers would obtain any profits by the accep. tance of his tender. There is enough to show that the words " divers large sums of money" cannot refer to monies in the tenderers' possession ; but it is, in my opinion, impossible to force upon these words the meaning of " possible profits," the existence — probable or actual — of which is nowhere mentioned in the indictment. All the eighteen counts are framed in nearly the same terms ; but the first seventeen refer to the tenderers, while the last charges an intent to defraud the Superintendent of Southland, in whom the property of the province is ▼ested by statute, of " divers large sums of money." It is not alleged tbat this money belonged to him either in his corporate or private capacity ; nor does it seem possible that he could be in any way deprived of it through the overt acts charged. It is not stated that any of the tenders opened were altered, or their contents abstracted j but it is to be inferred tbat the defendants made use of the knowledge of their contents, thus improperly acquired, to concoct a tender on their own account. It can scarcely be contended that the Superintendent would have been in any way defrauded by having an additional tender to inspect, however disgraceful the method employed to bring it before him. For the above reasons, I am, with regret, constrained to hold the allegation of conspiracy insufficient in all the counts ; and as no overt act, amounting to an indictable offence, is charged to have been done in pursuance thereof, judgment on the demurrer will be for the defendants. I have said that I give this judgment with regret, inasmuch as it by no means impugns the decision come to, after a long and careful investigation, by the Grand Jury, and the committing Magistrate ; but merely declares that the charge, in its present

form, does not impute an indictable misdemeanour. The question of the guilt or innoeeuce of the accused remains in precisely the same position as before, saving in so far as by demurring, in lieu of pleading ' not guilty,' they may be con sidered to have admitted the truth of the accusations brought against them. Had they been convicted thereof, after a trial before i.he petit jury, I can only say that, of all the crimes in the statute book, there are few of which the commission would more utterly unfit them for all future association with honest and honorable men. As the case now stands, the judgment of the Court is that the defendants be dismissed and discharged from the premises. The Crown Prosecutor, Mr Macdonald, applied to have prisoners held to bail to answer an amended indictment, but his Honor could not entertain the application. He intimated that in the event of further proceedings being decided upon, the case wculd have to commence de novo. Mr Smith having made formal application for their discharge, the prisoners were set at liberty. His Honor then dismissed the petty jury with the thanks of the colonv for their services, after which the crier adjourned the Court sine die.