SUPREME COURT.—Criminal Sittings.

(Before Mr. Justice Gbesson.) Friday, Dec. 7.

REOINA VerSUS FOOKS.

The Court sat to-day, to pass judgment on Chas, Berjew Fooks, convicted yesterday of embezzlement.

Mr. Dampier, on the part of the prisoner, rose to move in arrest of judgment, on the following grounds:—That the indictment did not in effect state, in the words of the statute, that prisoner was a person "employed in the public service of Her Majesty." It was usual in all pleading, in referring to an Act of Parliament, to follow expressly the words of the statute. Nothing was allowed to be inferred but what actually appears on the face of the record. The effect of the indictment as drawn was to put prisoner on a wrong line of defence, for it had not properly stated the offence with which he was charged. Ifc did not cast upon him the proving whether or not he was a servant of the Crown. Had he been charged as such in the indictment, he would have been bound to prove, and would have proved, that he was not so. The mere fact of the moneys passing through prisoner's hands did not constitute him " a person employed in the public service of Her Majestj," within the meaning of the statute, for they might have been received for some other person accountable to the Crown and under the usual sureties. Prisoner might have been a mere porter employed to carry the money from one room to another. -The real inference now to be drawn from the wording of the indictment was that prisoner had received the moneys of the Waste Lands Board.

His Honor here remarked that as far as he could gather from Mr. Dampier's argument, the whole point ofthe question was whether or not the indictment showed that the money was the property of Her Majesty and for the public service. Mr. Dampier contended that it did not, within the meaning of the statute. The indictment as drawn pointed to the case of one who was a servant ofthe Waste Lands Board. As the indictment stated that the moneys were received by prisoner as Secretary to the Waste Lands Board, it should also have stated that they were the moneys of the Board. The words " for the public service," in the latter part of the indictment, bore no reference to the character of the offence, which ought to have been averred in the early part, in order to bring the offence within the meaning of the statute. The indictment now treats the question merely as between prisoner and the Board, and does not shew clearly that the moneys were " the property of Her Majesty for the public service" and as such were received by prisoner in virtue of an appointment under the Crown.

Mr. Duncan, in reply, said, that the only real ground brought forward by the counsel for the prisoner in support of his motion seemed to be that the indictment was not so framed as to come within the meaning of the act. But, he apprehended, there was no stereotyped form of words in which an indictment had to be drawn, if by its terms it already shewed, within the meaning of tbe statute, the offence with which the prisoner was charged. The indictment in the present case complied with the terms of the statute. If the counsel for the prisoner thought that by the wording of the indictment his client had been prejudiced .or embarrassed, he should have said so during or before the trial. It was not necessary to follow the exact wording of the statute.

His Honor said that he had considered it satisfactory for the ends of justice that this point should be fully set forth and argued. After careful consideration he had come to the conclusion that the indictment was good, as charging the prisoner with the offence which the statute was enacted to punish. Mr. Duncan was right that there was no stereotyped form of words in which it was necessary to draw an indictment. If, however, tho words " for and on account of the public service" had been omitted, he would have been disposed to consider the objection a fatal one. But as the indictment now stood he had no doubt of its validity. He must refuse the application of the prisoner's counsel.

The prisoner was then called up for judgment. He stated his age to be 57 years. He had only a word to say before passing of judgment. He had been a public servant for upwards of seven years, and had always endeavoured faithfully to discharge his public duties. He could say no more. Two juries of his countrymen had, by their verdicts, declared that they thought differently, and he bowed to their decision.

His Honor, in passing sentence, said that he had no reason for disagreeing with the verdict of the jury. He could not concur in the prisoner's plea of inadvertence or carelessness. He found himself placed in a very painful position in being called upon to pass sentence on one who had so long occupied the public and social position lately held by the prisoner. That fact, however, he considered, so far from being any extenuation of his crime, in reality served to aggravate it. He (tbe Judge) had a duty to perform, and he would not shrink from it.

Sentenced to 4i years (2 years on each case) imprisonment with hard labor, from December 1, 1860. ■ » ■