THE Otago Daily Times. "Inveniam viam out Faciam." DUNEDIN, THURSDAY, OCTOBER 23.

Otago Daily Times, Issue 263, 23 October 1862, Page 4

THE Otago Daily Times. "Inveniam viam out Faciam." DUNEDIN, THURSDAY, OCTOBER 23.

Perhaps the most notable instance of eccentricity that Judge Gresson has evinced, was in! the case of James Smith, charged with obtain- \ ing money by false pretences from John Horr.; The circumstances of the case are briefly told. Smith called, some four months back, at a public honse kept by Mr Horr, and gave a cheque for 30s. on the Bank of New Zealand, Dunedin; in exchange for which he received the money. The cheque was presented, and returned marked "no effects," the drawer not having an account there. Mr Horr then caused Smith to be arrested; he was. committed for trial on the charge, and the case was heard before '. Mr Justice Gresson and a jury.

It is now perhaps necessary to explain that the mere fact of obtaining money upon false pretences, does not constitute the criminal element of the charge ; there must also be the intention to defraud. There can be no question that Smith did obtaiu money upon a false pretence. The cheque he gave purported to be on Dunedin, whereas he had no account at the bank in that town. But the essence of the charge lay in the intention to.defraud. Nothing is more common than for a person to write a cheque upon a wrong bank, omitting to substitute the name of his own bank; or to date the cheque from a Avrong place 5 but, unless other circumstances supply the intention to defraud, no one dreams of supposing it more than a mere mistake.- A.; says to a friend—" cash me a cheque for five pounds : give me one, I will fill it up." He does so hastily, and omits to draw it correctly. The cheque is useless, but the error is accidental, not intentional. In the present case, Smith ; obtained the money from a'stranger, and the prima facie supposition was, justly, that he intended to defraud. His counsel undertook to prove that such was not the case, in fact that the cheque was drawn by mistake on Dunedin, the prisoner having an account at the same Bank at Wetherstone's ; but the Judge declined to re ceive the evidence, and when he did allow it to be given he told the jury to give no heed to it; that it did not matter if the prisoner had an account at every branch of the bank excepting Dtmi.din, and that they could come to no other conclusion excepting that he was >uilty.

Upon what principle this ruling was laid down we confess we cannot understand. The Bank clerk stated that the cheques drawn at Wetherstone's were those in use at Dunedin. but that the latter word , had to be erased, and Wetherstone's substituted. Sometimes this was omitted to be done, and, if the party was known, no importance was attached to the omission, but the cheque Avas paid. Supposing, then, the prisoner meant to draw the cheque on Wetherstone's, the leaving the word Dunedin unaltered was only an ordinary mistake. To prove the mistake,—to show that there was not an intention to defraud, — it was necessary to show that he 'had an account at Wetherstone's; but that evidence the judge refused to consider material to the case, and told the jury they were not to regard it. It will be seen that we have simply argued as to the admissibility of the evidence, but not that,. supposing the prisoner had an account at Wetherstone's, the jury were bound to consider that he had no intention to defraud by drawing a cheque on Dunedin. ""We are not urging that because a person has an account at.one agency of a bank, j he is exonerated from the offence if he fraudulently attempt to obtain money from any other branch or agency. On the contrary, we allow that the accompanying cir r cuinstances are to be^ taken into consideration. I One man may draw a cheque with an intention to defraud; another may commit exactly the same act, but without the intention. It is for i .tlie jury to consider the intention, and not for. the Judge to tell them that the evidence that explains it is inadmissible. So far, then, we have only argued in favor of the admissibility of the evidence, and not that the evidence ! would necessarily acquit the prisoner; but i when we come to the consideration of the latter,the case becomes stronger. In his evidence at the trial. Mr. Horr dwdre that the prisoner said, when he cashed the cheque, that he had the money in the Dunedin" Bank. But his •evidence at the Police Court was different. W& proceed to quote his deposition :—

John Horr, sworn, states: Am a publican at the West Taieri. On the 4th May last,"the prisoner called at my house, "He said that his brother-in-law being ill, he was obliged to leave Dunedin before the Bank was open, and asked me if I would cash him a cheque for thirty shillings. I assented, and-he took a cheque book out of his pocket, and wrote out a cheque which he signed and gave to .me." Th. cheque produced is .the'same cheque. It is drawn on the Bank of New Zealand.' I%aVe the accused JEl^lOi'for it, ; I placed

it with oilier'monies to my credit in the Buik 6f| New South Wales, at Dune Tin. I subsequently re-' ceived a notice that the ch-que had- beeu presented, and that theiewere no effects, and the cheque was returned to me with "no account" written on the back. ; ; • ; ; : - '\ ;... • • ■ John Horr. Taken before me,

A. Chetham: Strode, R. M. It will be observed, that at the Police Court, < instead of ;swearing tliat the prisoner'said he ; had the money in the Bank at Dimedin, he (Mr Horr) simply deposed that he told < him he had to leave Dunedin ' without the money because the Bank was - not ( open. This means nothing more than that, had ■■ the Bank been open, he could have cashed his ' cheque, and it is scarcely necessary to say, that when a Bank knows the customer, it does not refuse to cash small cheques on one of its agencies. The evidence given at the Police Court was more likely to be correct, following , close on the occurrence, and, at least, the Jury might have been allowed to form an opinion on it. The evidence at the Police Court, taken in connection with the prisoner's having an .account at Wether tone's, would clearly have established his innocence, and supposing the latter testimony to have been received, the whole case would have hinged on the reliability of the second statement of the prosecutor, that the prisoner ' had distinctly stated that the money was in the Dunedin Bank. It should have been remarked that, when there is a donbt as to the intention, the prisoner receives the favor of it. It has been ruled that when a man draws a cheque for a larger amount than, he has to his account there is no intention to defraud, because he may either be mistaken as to his balance, or intend to pay in money between the time he gives the cheque, and that at which he may expect it to be presented. We thus see that the evidence not only should have been admitted, but that if the jury had been allowed to regard if, they would in all probability have acquitted the prisoner. We have argued on the assumption that there was a case to go to the jury, that it was in fact fair to have allowed them to come to a decision upon the intention or otherwise of the prisoner to delraud. But we think it can be shown that, properly, the case should not even have been left to them to decide; that the charge broke down as soon as the statement was made that the prisoner had an account at the Wetherstone agency. Speaking under correction, we believe that the cheque was properly drawn in a legalpoint of view. The Bank at Wetherstone's is merely an agency of the Dunedin Branch, and, in strict parlance, the cheque was really on the Dunedin Bank. At the Branch Bank the accounts of all the agencies are kept, every item is entered, and it is not usual to charge for exchange on collecting at the Branch a cheque on the Agency. Each Branch issues its own notes, payable at allthe agencies of that Branch, but not at another Branch; and to all intents and purposes the prisoner had an account at the Dunedin Bank. Of one thing we are certain, that if the cheque had been presented at Wetherstone's, the bank would have had to pay it. It has been ruled hy English Judges that a person is not to profit by his own mistake or informality, and in the case of a post dated cheque, and in one of a bill made payable "three days after doomsday," the bank had to honor the respective instruments at the drawer's and acceptor's cost. But putting this, which may be deemed a legal subtlety, on one side, the prisoner stood acquitted by the terms of the indictment. He was not in this charged with drawing a false cheque on the Bank of New Zealand, Dunedin,but with doing so on the Bank, with no i specification as to the branch or agency. We <z\ve the indictment in full :— j

Queen on prosecution of John Horr, against Jam-s Smith. In that James.Smith on the sth day of June, 1302, unlawfully, knowingly and designedly did falsely pretend to one John Horr, that hskept an account at the Bank of New Zealand, and that a cheque drawn by 'limself upon the said bank w.ia a good and valid order for the payment of one pound ten shillings, by means of which said false pretences the said James ■Smith did unlawfully obtain from the said John.nonmoney, the property,of the said John Hoit, with intent thereby then to defraud whereas in (ruth and in fact the said James Smith did not then keep an account with the. Bank of New Zealand ; and whereas in truth and in fact the said cheque was not i good and valid order for the payment of £1 10s. to the great damage and deception of said John Horr, md to the evil example of all of hers, against the form of tiie statute and against the peace, &c. Further remarks would be an insult to the sense of our readers. The charge was distinctly that the accused " did not keep an account with the Bank of New Zealand.;" it was proved that lie did, and. yet, to use the prisoner's own words, the Judjre assumed the functions of Judge and Jury, and charged the latter that they could come to: no other conclusion than to return a verdict of guilty. Well was: the man justified in adding that "if this.was-New Zealand Law the sooner he got away from it the better."