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

R. v. Montgomery [1841] NSWSupC 10

forgery - surgeon, criminal defendant - medical practitioner, criminal defendant

Supreme Court of New South Wales

Dowling C.J., 2 February 1841

Source: Sydney Herald, 3 February 1841[1]

            Tuesday. - Before the Chief Justice.

            Henry Atcheson Montgomery, surgeon, of Sydney, was placed at the bar on a charge of forging and uttering a cheque for 1,000l., purporting to be drawn by a deceased gentleman, Paul Pockliman, or Pollman, a native of Poland, in favor of the prisoner's wife, Agnes Montgomery. From the evidence it appeared that on or about the 15th of November last the deceased died in the prisoner's house, corner of Pitt and Bathurst Streets, where he had been residing for some time in order to obtain medical attendance. Soon after the death of Mr. Pockliman, the prisoner and his wife waited on Mr. Want, who had acted as attorney for the deceased, and asked him what he was to do with respect to the affairs of the deceased, as he was due him a little money, being the balance of an account of which he had, previous to his decease, paid 20l, by an order on the bank. The prisoner also stated to Mr. Want that the deceased had promised Mrs. Montgomery a gratuity of 200l. for the kindness she had shown him during his illness; on which Mr. Want told the prisoner that he had better apply to Mr. Manning, the Registrar of the Supreme Court, as he (Mr. Want) had heard that the deceased had money to the amount of about 1,500l. in the Sydney Bank. The prisoner then went to Mr. Manning; Mr. Manning made arrangements fore getting an account of the effects of the deceased, and while he was doing so, the prisoner told him a similar story to that which he had told Mr. Want, and informed him that they had found a cheque in the coat-pocket of the deceased, for £1000, drawn in favour of Mrs. Montgomery. The cheque purported to be addressed to the cashier of the Union Bank. It was proved that it was a pretty good imitation of the hand-writing of the deceased, so much so, that none of the witnesses would swear positively that it was not his signature; but there was wanting in it the private mark which the deceased usually put on his cheques, money orders, &c. It was also proved that inquiry had been made at several of the banks as to whether there were sufficient funds to answer the said order. A cheque-book was produced, from which, according to the opinions of several of the witnesses, the cheque had been cut.

            When the prisoner was called on for his defence, his counsel, Mr. Windeyer, submitted that there was no case to go to the jury. The Attorney-General submitted that there was such evidence, and remarked that the law made a wide distinction between putting off and disposing forged documents, and the offence of uttering and publishing; and stated that it was but seldom that direct evidence can be given of all the details in forgery cases, so as to fix the offence on the guilty parties; and concluded by requesting His Honor to put the case to the jury. His Honor stated that if he did so he should direct them to acquit the prisoner, as there was no evidence that the document was a forgery, that the prisoner knew it to be a forgery, or that he had ever, in the legal sense of the term, uttered or published the same. His Honor then directed the jury to acquit the prisoner, without calling on him to enter on his defence. He was immediately afterwards discharged.

Notes

[1]              See also Sydney Gazette, 4 February 1841; Australian, 4 February 1841.

Published by the Division of Law, Macquarie University