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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Walsh [1834] NSWSupC 5

forgery - promissory note - evidence - criminal procedure

Supreme Court of New South Wales

Forbes C.J., 7 January 1834

Source: Sydney Herald, 9 January 1834[ 1]

Tuesday. - Before the Chief Justice, and a Civil Jury.

Edward Walsh was arraigned under information of the Attorney General, on charge of committing a forgery, with intent to defraud the Rev. Ralph Mansfield.

The prisoner pleaded Not Guilty.

The reverend Ralph Mansfield deposed that the prisoner had, in September last, applied to him for some stationery, and proposed giving his promissory note for £5, in payment, which witness refused to do, without an approved indorser.  This negociation had been carried on through Joshua Cooper, a lad employed in the shop of witness.  The prisoner had afterward brought his promissory note to the house of witness, with the name of James Thornton endorsed on it; Joshua Cooper who was then in the shop, took it up-stairs to witness, who was in his study, and who referred to the Directory, supposing that James Thornton kept a public-house opposite the gaol, but finding that the christian name of this person was not James, he sent the lad down stairs to enquire of the prisoner who the endorser was? when the prisoner replied, that it was James Thornton who kept the Tap of the Rose and Crown Inn, Castlereagh-street.  On this representation, witness being satisfied, desired the lad to deliver the paper.  On the note becoming due, it was presented and dishonored by the prisoner; and was afterward presented to James Thornton, who denied all knowledge of the endorsement, and said it was a forgery.  The witness had subsequently sued the prisoner in the Court of Requests for the amount of the note, and the endorsement being pronounced to be a forgery, the present prosecution was instituted.  Although it appeared, that if the prisoner had then paid the amount, he might have obtained the note back into his own possession.[ 2]

Joshua Cooper stated that the prisoner had asked him if Mr. Mansfield would let him have some paper to the amount of £5 on his own note; witness said he would enquire, and let the prisoner know; he afterward informed the prisoner that Mr. Mansfield would take the note with an approved endorsement; the prisoner afterward brought the note endorsed as described, saying that James Thornton, the endorser, kept the Tap at the Rose and Crown, in Castlereagh-street; upon which Mr. Mansfield desired witness to deliver the paper to the prisoner, which was done.

James Gould deposed to his being in the service of Mr. Mansfield when the foregoing transaction took place; that when the note became due, Mr. Mansfield sent him with it to the prisoner for payment, who stated that he was not then prepared with the money, not having sold the paper, but that he would pay the note on the following Saturday; witness told the prisoner that if he did not pay the note, he was instructed to present it for payment to the endorser, James Thornton, which he afterward did, but James Thornton was not up, and on returning from his house, he was met by the prisoner, who asked him if he had seen Thornton?  Witness replied that he had not; prisoner then said if you will tell Mr. Mansfield that you cannot see Thornton, I will give you £1 in the evening; witness went home, and told Mr. Mansfield what had occurred.

James Thorton deposed to his keeping the Tap at the Rose and Crown, in Castlereagh-street; knows the prisoner at the bar, who lived with him from April to July; the endorsement on the note was not in the hand writing of witness; he knows of no other James Thorton in the Colony; about six years since, there was an advertisement in the Papers for one James Thorton, in relation to a ticket-of-leave, or something of that kind; Mr. Mansfield could have sent to witness originally, to inquire about the note if he had thought proper, as witness was generally at home in his business.

The case for the prosecution having closed, Mr. Rowe, for the prisoner, contended that the first count in the information merely stated the charge of forging a promissory note for the sum of £5, without date or further description; and the second count charged the uttering only, without reference to particulars.  This he held to be fatal to the information altogether.

The Attorney General replied that by a recent Act of Parliament, the law as to forgery was the same as in theft - ``that one count being proved, was sufficient for conviction, although the others may be imperfect, or fail in proof.

His Honor thought the last count in the information did not charge the fraud, which was bad; but there was sufficient in the first could for the case to go to the Jury.

The prisoner being asked if he had any witnesses, seemed to hesitate, as if unprepared with them; when Mr. Mansfield went into the witness box, and in reply to Mr. Rowe, prisoner's Counsel, said, that he had employed the prisoner occasionally during the last six years, and always supposed him to be an honest man, as far as he had transactions in business with him, and that he had no reason to think otherwise.

Hercules Watts, tanner, in Phillip-street, had known the prisoner twenty years, and always supposed him to be an honest man, having had many dealings with him.  The prisoner had an opportunity of defrauding witness of £150 a short time since, if he had wished to do so, as witness had paid him the money for a house some months before he took possession, and had no writings or receipts to prove the payment.

Barnard Fitzgerald, an officer in the Court of Requests, had known the prisoner twelve years; witness was seven years conductor in the district where prisoner lived, and never heard or thought of any dishonesty in his living; but had such been the case, would have felt the strictest confidence in him; witness could not reconcile his mind to the charge now against the prisoner.

No more witnesses being called, His Honor summed up with great perspicuity, and stated the law of the case to the Jury.  The second count of the information was imperfect, and might be abandoned; but the first count was sufficiently explicit, and embodied all the merits of the case as to the act of forgery.  The Jury would consider well the evidence before them, and return their verdict accordingly.  Several witnesses had given the prisoner a good character, which was always to be regarded, but could not avail against positive facts.

The Jury after retiring some time, returned and gave a verdict ``that they were of opinion that there was no evidence that the prisoner had committed the forgery himself, but that they thought he had caused it to be done."

His Honor said that if a man cause a thing to be done, in law, he does it himself; and he thought the Jury would retire again, and amend their verdict.

The Jury retired a second time, and then pronounced the prisoner Guilty.

His Honor then remanded the prisoner till called up for judgment.

 

Forbes C.J., 13 January 1834

Source: Sydney Herald, 16 January 1834[ 3]

 

Edward Walsh, convicted for forgery, being brought up; his Honor observed, that the offence of which he had been convicted, but for a recent Statute, would have been punished with death; in taking away that punishment however, it left no alternative with the Court, as to the extent of the punishment.  Sentence of transportation for life was then passed upon the prisoner.[ 4]

 

Notes

[1 ] See also Sydney Gazette, 9 January 1834; Australian, 10 January 1834.

[2 ] According to the Sydney Gazette, 9 January 1834, Mansfield's evidence was found to be irregular as it was hearsay, and he was withdrawn from the witness box.

[3 ] See also Australian, 15 January 1834; Sydney Gazette, 14 January 1834.

[4 ] As a matter of crown mercy, the governor subsequently commuted this sentence to transportation to Norfolk Island for 14 years: McLeay to Forbes C.J., 20 February 1834, Chief Justice's Letter Book, 1824 - 1835, State Records of New South Wales, 4/6651, p. 374.

Published by the Division of Law, Macquarie University