FRIDAY, APRIL 27, 1883. NOVEL JURISPRUDENCE

Manawatu Standard, Volume 4, Issue 120, 27 April 1883, Page 2

FRIDAY, APRIL 27, 1883. NOVEL JURISPRUDENCE

His Honor Mr Justice Gillies, when prepiding at the criminal sessions of the Auckland Supreme Court m the January circuit, committed himself to some very singular disquisitions on the moral code as bearing- on judicial matters. His remarks on the Hamilton murder and the Gudgeon rape cases will not probably be forgotten within the next decade, as they were of such an extraordinary character as to elicit adverse comment, from the Press all over the colony. No less remarkable, and m oar opinion no less injudicious, was that portion of his chat ge to the Grand Jury referring to a case on tne calendar of larceny aß a bailee. His Honor thus expressed himself : — " A bailee is a persot who is m charge of the property of another, and has acquired temporary i rossession of it. He comes by the property rightfully . But if, having it m his possession rightfully, he steals, makes away with, or turns it to his own use, he is guilty of theft. In the case that will come before you there is a rather curious complication. A person, a settler m the country, requests the person accused to buy some horses for him m Auckland. The prosecutor {rives the accused an order for £36 on a person m town. When the order is presented it is honoured by payment with a cheque for £36, and the accused should have applied that cheque as payment for the purchase ot the horses. But, instead of doing this, he CBshes the cheque and spends tbe money. !Sou will have to consider whether there is any larceny —wbetberjin point of fact, there is a stealing. No doubt there is a breach of trust. But what was stolen ? He comes fairly and rightfully by the order m the first intance. He presents the order, which he is entitled to do; he gets the cheque, which he is entitled to receive ; he cashed tbe cheque, which he might do if -he pleased ; he got the money for it, which be was entitled to get ; but be failed to apply tbe money •as he was directed to apply it. He was not a servant of the prosecutor,therefore there was no embezzlement. Nor was he bound to apply this special cheque or this special money m payment ffor the horses. He mi«ht have applied a part of it m that way, or he might have returned tbe money it be could not get the horses. He comes fairly and honestly by the money ; the wrong was m tbe breach of trust m not apply ing the money as he was instructed to , apply it. 3ad the accused been a servant of the prosecutor tbe offence cbarg- d should have been embezzlement. Not being so, it was only a breach of triwfc, not a larceny either of . the cheque or tbe money received." This definition will strike tbe majority ! of people as very peculiar, and not exactly calculated to diminish the committal of the too common class of offence I referred to. According to Judge j Gillies' ruling it is very difficult — m ( fact, well nigh impossible to sheet home a criminal charge against a man who is entrusted with money for a certain I purpose, but who appropriates it to his own use. It seems to us like offering a premium for the committal of crimes of : the kind alluded to, when the chances oi escaping a conviction are so much m

favour of tho accused add a -ninst the prosecution. But really after Judge Gillies' extraordinary — indeed, we might elmost say unprecedepted judicial utterances, on the memorable occasion of the Auckland criminal sessions of January, 1883, no observations of his addressed to a member of the Bar, or to a grand or common jury, will cause the public anything beyond a passing feeling of br'ef snrnrisp.