SUPREME COURT.—Criminal Sittings.

New Zealand Herald, Volume X, Issue 2796, 14 January 1873, Page 3

SUPREME COURT.—Criminal Sittings.

MONDAY, JANDARY 13. [Before His Honor Sir Gh A. Arney, Knight, Chief Justice.] His Hoxoit took his eeat on the Bench at 10 o'clock. Forgery.—Alexander McMillan, 30, described us a coach proprietor, was arraigned upon an indictment charging him with having, on the 3rd December lust, forged a letter of request, purporting to proceed from a Mr. J. M. Brassey, solicitor, of Auckland, in practice nt the Thames, and directed to Mr. Owen Griffiths, for the payment of £9 Is. —Mr. "W. 11. Rees defended the prisoner.—The facta of this case were somewhat unusual, and very few and simple, but the inquiry possessed considerable interest, as affecting the position of a bankrupt petitioner upon having filed hia petition in bankruptcy.—Mr. Owen Griffiths was examined, and stated that on the 2nd of December he was iudebted to the prisoner in the above amount, and the prisoner asked for it. Witness aeked the prisoner to wait a day or so ; but in the meantime one of the prisoner's creditors came to witness, and said he should not pay the money, which was strictly due to his estate and the creditors of his estate. The prisoner again camo and asked for the money, and witness told him what had been said by one of the creditors. After some conversation, witness agreed to pay prisoner the money upon his procuring a letter or order from Mr. Brasaey, managing clerk to Jackson and Kussell, at the Thames. Both went togother to Mr. Brassey's office, but found it locked. The prisoner said he knew where Mr. Brassey lived, and ho would go to him and get the necessary order. The nest day the prisoner came to witness with an order in the following terms: —" Please to pay to Mr. McMillan £9 Is." The witness paid the prisoner a portion of the money (£5) by cheque.—Mr. Woon, a clerk in the office of Messrs. Jackson and Russell, Grahainsfcown, deposed that the prisoner came to him and naked him for an order upon Mr. Griffiths for tile money. Air. Brassey was uot in at the time, and wit.ne.-s declined to uive any order. Witness said the signature at the bottom of the order for payment was uot in Mr. Brassev's handwriting, nor was it anything like his handwriting.—This concluded the case for the prosecution.—Mr. ~W. ]j. Kees, in his defence of the prisoner, said that the mere filing a petition of insolvency did not take his properly out of the hands of the insolvent. Notwithstanding that fact, tho money duo by Mr. Griffiths was slill McMillan's money. There could, there.'ore, be no felonious intention lor that which belonged to him. —His Honor said the,jury would first put the logical conclusion upon the facts proved. Was the signature to the document put a forged signature? and if ao, was the forgery committed by the prisoner ? As to the legnl aspect of the case, when a bankrupt filed his declaration, the filing being gazetted in the ordinary course of b isiness, the estate was strictly in charge of the Court. No creditor could sue the prisoner, and the estate awaited the ordinary cuorse o! procedure, which woiihl ultimately distribute it among the creditors who had rights to recover the amounts or a proportion of the amounts which they claimed against it. Hence, as the creditors could not sue the bankrupt, neither could the bankrupt be permitted to make away with, appropriate, or expend any portion of the estate until he had undergone complete adjudication and enquiry. It was clear, therefore, that the forging the names of a person who was for tho time being in possession of the estate was within the strict definition of the offence charged, and the jury would just ask themselves (I) was this signature counterfeit ? (2) if so, was it tendered to obtain money ? and then, (3) was the intention a fraudulent one? which could beat be gathered from the Act itaelf, and the depriving of his estate of a sum of money which really belonged to his creditors. Tho jury retired, and shortly afterwards returned into Court wish a verdict of "guilty of Uitering without intent to defraud." The Court considered the finding equivalent to an acquittal, and a Ter.nct of " nob guilty" was accorded. Second Ciiauge.—The prisoner was arraigned upon a aecond indictment charging him vviiU uttering a forged document for £3UO, purporting to have been drawn by Edwin Biuuey, auctioneer and salesman, of G.'tihamstown. —Mr. Kees, as in the previous case, defended the prisoner. Tho fuels of the case were even more curious than those of the last, and the legal questions t hat arose out of them more interesting. It appeared that the prisoner owed Mr. Mackie, a eoachbuilder at the Thames, tho sum of £53 15s, and the creditor pressed for payment. The prisoner said he would have money in a few days, and produced two bills purporting to bo signed by Mr. E. Binney, for £300 and £50 respectively. In consequence of this, Mr. Mackie agreed to wait a few days longer for his money. In order to prevent, inconvenience to Mr. Mackie, who was anxious to aettle with those to whom he was indebted, the prisoner offered to go with Mr. Maokie and show the bills, so as to avoid pressure. Ho showed the bills to Mr. Rued, a timber merchant, and

others. The legal question was, whether the exhibition of a document, for the purpose of evading the pressure of creditors, could bs regarded as an intent to defraud. It should here be stated that the bills had been destroyed.—Detective Murphy proved that the prisoner, on being searched, naid the promissory cotes were where they could not bs got at; that tho prisoner further declared that he had destroyed them.—Mr. Rees, on behalf of the prisoner, contended that there could not be any intentional fraud where there could be no gain to the prisoner or loss occasioned to others.—Mr. Brook field contended that these documents were uttered to obtain an extension of credit. But, assuming the law on this point doubtful, he called a witness, named George McCaul, who, he said, was in the habit of lending money. The prisoner went to McCaul and wanted to borrow £."00 from him. This was relied upon by the prosecution as showing the intent of the uttering. There was considerable difficulty to prove the foryery itself, the docu ments having been destroyed. For this purpose tho admissions of the prisoner a? to the nature of the documents, the description of them by the several witnesses who saw them, the letter of Messrs. Close, of 150, Queenstreet, Auckland, creditors of the prisoner, in which reference was made to th« smaller bill for £50, were relied upon.—Mr. Mackie and Mr. Reed proved the principal l'ac:s above detailed.—Mr. George McCaul deai-d that he was in the habit of lending money, but, said the prisoner showed him the bills, and did ask from him tho loan of £500, or that witness would back a bill, which he declined to do.— Mr. Binney said he purchased some coaches and plant from the prisoner for £325. Paid prisoner in cash and a bill of £116 odd for the balance. There was £103 due to witness by . the prisoner. Gave a bill endorsed for £105 about the 18lh of June, which would havo been due iu September. Witness having cudorsed the bill, had to take it up. It was met by cheque. There was no bill outstanding after September. Never gave McMillan a bill for £300, or for £350, or for £50.—Mr. fices addressed the jnry, commenting at length upon the inadequacy of the proof offered of a forgery ; the fact that there was a large sum clue to the prisoner, and the absence of any proof whatever that there was an intention to defraud. —Mr. Brookfield replied on the case, contending that the facts proved showed that there was a forgery of Mr. Binney's name ; —that the intention was to be gathered from the facts.—His Honor summod up, and the jury, after a few minutes' deliberation, returned a verdict of " not guilty." Tiiibd —The prisoner was arraigned upon another churge of forcing an order for payment of £50, but Mr. Brookfield said the evidence in this case was precisely similar, and a verdict of " not guilty" was" taken.—The prisoner was discharged. The Court rose at a quurter-pußt seven j o'clock - .