LAW REPORT.

New Zealand Police Gazette, Volume XXXIII, Issue 41, 14 October 1908, Page 442

LAW REPORT.

(“N.Z. Law Reports,” Yol. xxvii, page 682.) [ln the Court of Appeal. Wellington (Williams, Denniston, Edwards, Cooper, and Chapman, JJ.) — Bth, 27th July, 1908.] Rex v. Stewart.

Criminal Law Verdict —Criminal Intent negatived Forgery—lngredients of Offence —Intent to defraud unnecessary—Practice—Ambiguity—Power of Court to look at Evidence to construe Verdict —New Trial—“ The Criminal Code Act, 1893,” Sections 369, 271. The ingredients of the crime of forgery as defined by section 269 of “ The Criminal Code Act, 1893,” are, 1, that the document is a false document; 2, that the accused made it knowing it to be false ; and, 3, that he made it with the intention that it should be acted upon as genuine. The ingredients of the crime of uttering, as defined by section 271 of the same Act, are, 1, knowledge on the part of the utterer that the document was forged; 2, the using, dealing with, or acting upon it, or the attempting to do so by him, as if it were genuine. Therefore an attempt to defraud, although an ingredient of the common-law offences of forgery and uttering, is not an ingredient of the statutory offences created by sections 269 and 271 of “ The Criminal Code Act, 1893.”

The prisoner was indicted under sections 269 and 271 upon a charge of forging and uttering an acknowledgment of the receipt of money. The prisoner as §,gent for M. had incurred a debt of £5, and the creditor G. demanded payment from him. He thereupon made and signed in G.’s name a receipt for £5 from himself. The prisoner then sued M. for the £5 which he alleged he had paid to G., and produced the false receipt in support of his claim. He recovered judgment. G. swore that he had not authorised the prisoner to sign the receipt. The jury found the following verdict: “We find accused guilty of forging and using a receipt, but do not consider it was done with any criminal intent.” Held by the Court; of Appeal (Williams, Denniston, Edwards, Cooper, and Chapman, JJ.), That the verdict was ambiguous, for it might have meant that the jury thought the prisoner had no intent to defraud, in which case, as that was not a necessary ingredient of the offence, it was a verdict of “Guilty”; or it might have meant that they believed he honestly thought he had authority to sign and use the receipt, in which case it was probably equivalent to a verdict of “ Not guilty ” ; and that under the circumstances a new trial should be ordered. Reg. v. Gray (17 Cox C.C. 299) and Reg. v. Bern (14 N.Z. L.R. 321) distinguished. Qucere, Whether on a case stated under section 412 of “The Criminal Code Act, 1893,” the Court is entitled when the verdict of the jury is ambiguous to apply to its full extent the rule in civil cases enunciated in Hollins v. Fowler (L.R. 7 H.L. 757) and Dawson v. Reginam (N.Z. L.R. 3 C.A. 1), and, after looking at the evidence to construe the verdict, to enter a verdict of “ Guilty ” ; but for the purpose of determining whether the verdict should be entered for the prisoner or whether there should be a new trial the Court may properly look at the evidence.

The undisputed facts in the present case are that a Mr. Griffiths was introduced to the prisoner by a Mr. Rough in June, 1906 ; that Griffiths, who was an architect, prepared for the prisoner a plan of a shop in Cuba Street, and that, upon his applying to the prisoner for payment for the plan, the prisoner told him that the plans were for a third party, and he would have to procure the money from this third party before he could pay Griffiths. In August, 1907, the prisoner sued a Mr. Morris in the Magistrate’s Court for the sum of £ls Is., one of the items being “Amount paid for plans for shop and dwelling, £5 55.” At the hearing before the Magistrate the prisoner produced a receipt in the following terms: “ Hankey Street, Wellington, Dec. 1, 1906.—Mr. W. H. Stewart, for J. Morris, Tory Street, in account with H. V. S. Griffiths, architect.—To preparing sketch-plans for shop and offices, Cuba Street. —Paid by cash. —H. V. S. Griffiths [ld. stamp ; 16/8/’o7].” The Magistrate gave judgment for the prisoner against Morris for this sum of £5 55., together with the other items of his claim. The prisoner had not paid Griffiths the amount, and the receipt was not signed by Griffiths. Griffiths swore at the trial of the prisoner that he had never authorised the prisoner to sign it. On the 16th of March, 1908, Detective Andrews interviewed the prisoner, and the prisoner then made a statement, which was taken down in writing by the detective and signed by the prisoner. In that statement the prisoner said he had informed Griffiths that Morris had not paid the amount, and that at Griffiths’s request he (the prisoner) undertook to sue Morris. The statement continues,

“ When I sued Morris for £5 ss. I produced a receipt signed by me for H. V. S. Griffiths. I did this as I considered I was his agent and he had given me authority to do so. The receipt now shown me by Detective Andrews is the one produced in the Court by me.” The material part of the prisoner’s evidence upon his trial is as follows : “I undertook to sue on Griffiths’s behalf, as he was leaving Wellington. I could not get Griffiths at the time ; otherwise I would not have put in the receipt. I was not sure of Giffiths’s address, and I produced the receipt in Court. Before he went away he said I could do what I liked to get the amount, and I suggested that he should accept £2 in payment. I also suggested that Morris should be sued, but I can’t say I suggested that I should sue in my own name. As agent; for Griffiths I consider I had authority to sign the receipt. Griffiths did not sign it, and it was not intended to be a forgery. I was advised it was necessary to have a receipt from Griffiths before I could sue. I was advised by the solicitors, but did not know this before.” In cross-examination he stated that the body of the receipt was typewritten by a clerk in the prisoner’s office, and that he (the prisoner) was not the person who actually signed the receipt. “ I say,” he said, “ some one else signed the receipt, apd I decline to say who it was, because that person would have to stand in my place here, and I prefer to take it all on myself.” The other evidence adduced on behaf of the prisoner was as to character only. Since the prosecution commenced the prisoner has paid to Griffiths the sum of £3 9s. on account of the £5 ss. The proved facts were, therefore, 1, that the document in question was not signed by Griffiths, and that he had no knowledge of its existence; 2, that the prisoner had not paid the £5 ss. or any part of it to Griffiths up to the time of the commencement of the prosecution; 3, that the receipt was prepared under the direction of the prisoner, and that Griffiths’s name was either signed by the prisoner or by some one under the direction of the prisoner; 4, that the prisoner had no express authority from Griffiths to sign the receipt or to ask any other person to sign it for Griffiths, and there was no evidence of any implied authority, the prisoner’s statement that as agent he considered he had authority to sign the receipt having no foundation in law ; 5, that he used and dealt with the document as a genuine document signed by Griffiths ; 6, that he did so not for the purpose of defrauding Griffiths, but in support of his action against Morris. If an intent to defraud were an essential ingredient in the crime of forgery, as it was at common law, then the verdict of the jury negativing criminal intent would have been equivalent to a verdict of “Not guilty.” But forgery is defined by the Criminal Code. There is now no common-law offence. Section 269 defines the offence as “the making of a false document, knowing it to be false, with the intention that it shall in any way be used or acted upon as genuine, or that some person should be induced by the belief that it is genuine to do or refrain from doing anything.” “ Uttering ” is the using or dealing with a forged document by a person knowing it to be forged ; or attempting to use, deal, or act upon it; or causing or attempting to cause any person to use, deal, or act upon it as if it were genuine (section 271). In order, therefore, to establish the offence of forgery three matters only are essential—l, that the document is a false document ; 2, that the person charged made it knowing it to be false ; and, 3, that he made it with the intention that it should be used and acted upon as genuine. To establish the offence of uttering, two things only are necessary—l, knowledge on the part of the utterer that the document was forged ; and, 2, using, dealing, or acting upon it, or attempting to do so, as if it were genuine. The verdict of the jury in the present case is, “ We find the accused guilty of forging and using a receipt, but do not consider that it was done with any criminal intent.” If the jury merely intended to negative an intent to defraud, then, as it is not necessary to allege an intention to defraud in the indictment or to prove it at the trial, the verdict is certainly not one of acquittal-, and Reg. v. Gray (17 Cox G.C. 299) does not apply. In that case the prisoner was indicted upon a charge of obtaining money and food by means of a false pretence. The jury found the prisoner “ Guilty of obtaining money and food under false pretences, but whether there was any intent to defraud, the jury consider there is not sufficient evidence, and therefore recommend the prisoner to mercy.” The intent to defraud was in that case of the essence of the offence, and the verdict of the jury meant that the Crown had not established the intent, and therefore the verdict was equivalent to one of “Not guilty,” and the conviction was quashed. In order to read the verdict in the present case as one of acquittal the verdict must be construed as meaning that by negativing criminal intent the jury meant to negative one or more of the essential ingredients of the offence. They could not have meant to find that the prisoner had used the receipt without any intention that it should be acted upon as genuine. His own evidence establishes beyond doubt that his intention was that it should be acted upon as genuine.

If the technical meaning of “ forging and using” is to be given to the terms of the verdict, then the jury found the prisoner guilty, and the concluding words of the verdict mean only that the prisoner had no intention to defraud. On the other hand, the jury may have meant that the prisoner honestly believed that he had Griffiths’s implied authority to sign the receipt, and that he prepared and signed, or caused the receipt to be prepared and signed, under a mistaken but honest belief that he had authority to do so, and that he used the receipt in that honest belief and without any criminal intent. We have distinguished this verdict from that of the jury in Reg. v. Gray (17 Cox C.C. 299.) I think it is also distinguishable from the verdict of the jury in Reg. v. Bern (14 N.Z. L.R. 321), cited by Mr. Myers. There it is clear that the jury intended to find, and did expressly find, the prisoner guilty on the Ist, 6th, 7th, Bth, 9th, and 10th counts, and the special matters stated by them in connection with their findings were consistent with their express verdict of “ Guilty,” and did not negative any component part of the offences stated in those counts. The following observation of Mr. Justice Williams in his judgment in Reg. v. Bern (14 N.Z. L.R. 321) are appropriate, however, to the present case. He said, “If there is anything in the verdict which negatives the guilt of the accused, then, no doubt, the verdict must be taken as one of ‘ Not guilty.’ Where, however, there is nothing found which is inconsistent with guilt, and the guilt of the accused is found, that is a verdict of ‘Guilty.’ Sometimes, no doubt, the Court cannot say what the jury really did mean, and then a new trial may be the proper course.” In our opinion, the present case falls within the last proposition. We cannot say whether the jury meant merely to indicate that in their opinion the prisoner had no intention to defraud Griffiths, in which case the verdict would be one of “ Guilty,” or whether they meant that he honestly believed that he had authority to sign the receipt, and signed and used it believing that be had a right to do so, in which case probably the verdict would be equivalent to one of “ Not guilty ” ; and therefore we cannot say what the jury really did mean. We think, therefore, the proper course is to order a new trial.

Solicitors for the prisoner : Field, Luckie, & Toogooa (Wellington). Solicitor for the Crown : The Crown Solicitor (Wellington.)