R v Parker, 1839

[embezzling – insolvency – billiards – gambling – reception of English law, bankruptcy – pardon, in cases of uncertainty – criminal appeals]

Robert Parker was then placed at the bar, when the Attorney General said he should enter a nolle prosequi upon the information he had presented. The prisoner was then arraigned upon a second information of three counts. The first count charged that he having been declared insolvent under a certain Act of Council, on the 11th Feb. last, did after he had be[come] and before he was declared insolvent, to wit, on the 11th of February last, wilfully, maliciously, fraudulently, and feloniously conceal, remove and embezzle 100 sovereigns and other property with intent to defraud his creditors. The second count charged the same offence with being committed on the lst of March, after he was declared insolvent. And the third count charged him with having on the 13th May embezzled other monies and property with the like intent.

To this information the prisoner, who was defended by Mr. Horne, assisted by Mr. Stewart, pleaded - Not Guilty.

The Solicitor General stated that this was a prosecution instituted by the creditors of an insolvent, as an act of public justice to the community. The information was framed according to a local act, by the 5th section of which all the property of an insolvent, at time he was so declared, or which he might afterwards acquire before his discharge, becomes vested in his assignees for the benefit of his creditors. Other sections of this act declare that any concealment of property, with intend to defraud his creditors, entailed certain pains and penalties therein specified. In this act, the learned gentleman observed, there was abundance of provisions for the protection of the unfortunate. These provisions were almost too great to be encouraged. It was, however, the law, and we were bound to obey it. At the same time, while the unfortunate man had such ample means of relieving himself from these embarrassments, which are the result of misfortune, the act also guards against fraud and imposition. This was a case in which it became necessary to claim the protection of the law against a most glaring fraud as he would shew in evidence. The learned gentleman, then recapitulated the facts of the case, and called,

Joseph Henry Moore, Esq. - I am commissioner under the Insolvent Act of this place. I received from Mr. Askin Morrison, this petition presented on the 14th Jan.,1839, to declare the prisoner insolvent. I declared the prisoner insolvent in consequence, and my declarations appears among these papers. It is dated on the same day. Askin Morrison and George Hunt were on the 6th March appointed by the creditors, permanent assignees. Mr. Morrison was appointed provisional assignee by me previous. [Declaration of insolvency read.] This is signed by me. The insolvent attended to be examined before me. This is the examination of the insolvent signed by me on the 25th February. It is also signed by Parker. Towards the bottom of the last page, I read, “I had goods at Smith’s, in Melville-street, I gave an account of all my goods except those at Smith’s.” During his examination he gave no account of any property except what is stated in this examination There is nothing I imagine in that statement in reference to the property found at Holland’s. Parker never applied to me to be discharged from his insolvency, nor has he ever been discharged down to the present time.

Cross-examined by Mr. Horne. - This is the only examination of Parker in his insolvency. The date of the appointment of the provisional assignee was 14th Feb. There have been one or two meetings of creditors. After the examination to which I have alluded, there has been no application for a further examination of the insolvent.

By his Honor. - I cannot say that any questions were put to Parker respecting his wearing apparel. The prisoner at the bar is the person we have been speaking of as Robert Parker, and the person who signed this examination. From an opinion formed by the provisional assignee, he was very strictly examined as to his property, but the questions put to him were not taken down.

Askin Morrison, Esq. - I was the petitioning creditor of Robert Parker. He was indebted to me at that time on a bill of exchange for £146 10s. 10d. Which was the foundation of my petition. The amount was for goods sold and delivered by me to the insolvent. I attended on the occasion of Parker’s first examination, when he gave an account of his property. I thought at the time he gave a full account.

Mr. Moore recalled - Proof of bills of exchange is by affidavit, and the exhibition of bill. This is the affidavit of Mr. Morrison, which accompanied his petition, and on which I declared Parker as insolvent.

Mr. Morrison cross-examined by Mr. Stewart - The prisoner was declared insolvent immediately after I made this affidavit.

[Affidavit read. Service of notice upon insolvent, publication in Gazette, and notice of order for examination were then all admitted by prisoner’s counsel.]

William George Harris stated that he attended the insolvent court to take down Parker’s examination. [Examination read.]

John Price, Esq, - I am Assistant Police Magistrate, Parker made this deposition before me on the 9th May. To the best of my belief I read over this to Parker myself.

Mr. Horne objected to the deposition being given in evidence, on the ground that his own statement could not be taken against himself.

John James Holland stated, that in February last Parker applied to him for permission to deposit two boxes at his house. Shortly afterwards two boxes were brought to the house, and Parker frequently came to the house and went to the boxes. Have seen him open the boxes, but never examined them. Sometime afterwards in the morning saw Parker at one of the boxes, and in the evening of the same day found one of the boxes broken open, and some of the contents strewed about the floor. Sent for Parker the next morning, and on his examining the box, asked if he missed any thing. He said, “its all gone.” Asked “What’s gone?” He replied, £178 or £187, I do not recollect which. He said it was sovereign, and I think he said a louis d’or. I asked him where he got it, and he said he got some of it from Charley Newman.

Cross-examined by Mr. Stewart. - When I found the boxes broken open, they had been about six weeks in the house. I was present when Parker appeared at the Police Office on this charge. He always wore a watch with a guard, chain and seals.

By the Court. - The boxes were in a room not usually locked, as it formed the access to my own.

Caroline Richards was examined, and her testimony was similar to that of the last witness.

William Ivy said that he was clerk to Mr. Lowes, and took an inventory of Parker’s goods, but not of his apparel, it was not customary.

John Swift said he went to Holland’s house, and took possession of the two boxes; valued their contents at £7[6] [o]dd. There was a silver watch £11 10s, guard [17]s., chain and ring £2 10s., two seals £5 10s, and two keys [3]s., and the money found on his was £38 and the articles in the boxes £16 odd. Apprehended Parker on the 13th May.

Mr. Horne rose for the defence, and moved the following objections:- lst That the authority of the commissioner to declare the prisoner insolvent, had not been proved. 2nd. That no act of insolvency in the prisoner had been proved, and therefore the prosecution must fall to the ground.

The Solicitor General was aware that such a course was necessary in bankrupt cases, but this one was totally different. In the former, a special commission was requisite for each case, and the party had his locus penetentiae, and might come in at any time before the expiry of the commission. In this colony there was a general commission or court with full powers to act in all cases, with certain rules laid down for its guidance. The sole point, therefore, which it was necessary for him to establish in order to maintain the information was, that the prisoner had been declared insolvent.

His Honor said he would reserve the points, but thought they were not sufficient to stay the proceedings.

Mr. Horne. - Gentlemen of the Jury. In defence of the individual who now stands before you, it is my duty to offer a few observations which I consider necessary, and the shortest way of doing so will be by referring to the act under which this prosecution has been instituted. You have it in evidence that the prisoner was declared insolvent on the 11th February, that he was subsequently examined as to his property. His wearing apparel, as is quite customary, in those cases, was not included. A considerable time afterwards his boxes, in which that wearing apparel was deposited, were robbed, and a sum of money taken out. His own deposition complaining of this robbery has been put in evidence against him to prove that this money was his. Well gentlemen, what then? If it were, is there one tittle of evidence before you to shew that he possessed that money when he was examined touching his property, and strictly examined too? You heard me distinctly ask the question, whether he had been more than once examined, and it appears he was not. The creditors had the power to call him up for a further examination, but did not do so. Now, gentlemen, as I shall shew you in evidence, that the money upon which so much stress has been laid, was acquired long after his examination, and that of the money found upon his person, a great portion of it was not his own. Before you can convict this man, you are called upon to believe, however, absurd that he had the property found in his boxes on the 11th February, and that at the hazard of being placed where he now stands, selected that property, when by giving it up, he might have been discharged and so cleared from all his debts. You are called upon to believe that he did not acquire it in the mean time, and that his intention was not to hand it over to his assignees. Is it not more natural to believe, that having acquired this money, after his examination, it was his intention to pay his debts with it? Is there one atom of concealment in the case? If he had wished to be convicted, he could not have (supposing his intention to be fraudulent,) adopted a more certain method, than to send his property to the house of Mr. Holland, a clerk in the Police Office, by a man, and never to go to see if they were safe for days afterwards. The learned gentleman then commented at considerable length upon the defective, as he termed it, nature of the evidence, and concluded a very ingenious defence by strongly appealing to the jury, not to send a man away branded as a felon, without a thorough conviction of his guilt.

T.Y. Lowes, Esq. sworn. - I am an auctioneer, I have carried on business for some time. I have frequent occasion to take inventories and disclose the effects of insolvents; I do not collect ever taking an inventory of wearing apparel. I had no instructions to take anything but stock in trade in Parker's case.

John Stevenson sworn. - I know the prisoner and recollect his being apprehended, I gave him £14 on that day about ten o’clock, it consisted of nine £1 notes and one £5 note; it was my money.

Cross-examined. - I rent the billiard room at the Ship Inn, and am sometimes marker there. I have known the prisoner three or four years, and I have rented the billiard room two or three; the room is sometimes opened about eight o’clock, and sometimes not at all, it usually closes about twelve; it is sometimes open all night, but very seldom, after twelve I am not there. I never require anybody to watch my interests. The players pay me so much a game; during my absence any gentleman goes in and plays, and pays nothing without he likes; on an average I am absent more than half the day. I get money in other ways, such as discounting good bills; I sometimes play an all-fours game, but am not very much in the habit of playing; never played with the prisoner; have seen him play since his insolvency; never saw much money won or lost; perhaps £5 or £6 at the outside. I know Charles Newman very well; have seen him play with Parker, and saw him win a doubloon and one or two pounds; they were playing for one or two pounds; on my oath I think £2 was the outside I ever saw them play for. The £14 was intended as a bet with a man who said he could do what Mr. Gregson did in much less time; I knew very well he could not, and as he had some money I thought I might as well win it as any body else; I deposited the £14, all I had about me, with Parker, who was to put down his watch to make it twenty to bind a bet of £200; this was after he was playing with Newman, besides the stake there were bye-bets; I think I never said before the magistrate that they betted on the result. It is not uncommon for £200 or £300 to pass. I don’t exactly know the meaning of the word “nipper” - I have been frequently called “Jack the Nipper,” but I should be glad to find any gentleman who would say he caught me “nipping,” or doing anything unlike a man.

Charles Newman sworn. - I know the prisoner, and have known him I should think eight years. I recollect his insolvency; before he was declared insolvent I never played at cards with him; I have played at all fours with him since. I remember hearing of his apprehension a day or two afterwards; I was then at Oatlands, where I have property. In playing with Parker I have lost; I think I have played with him four or five times; at the time he was playing with me I knew he was insolvent, as I bought a good deal of his property. I think I lost six £1 notes and five doubloons. I think I went up the country the next day; I had been at Oatlands four days when I heard he had been apprehended for something. I think I lost above a hundred sovereigns in sovereigns and half sovereigns, all the gold I had in the house, he had good luck. I can’t say I have known him play with any one else.

Cross-examined. - I live on my means; I have done so these four months; I was a carrier before this; I have a farm at Oatlands.

W. M. Orr. Esq. sworn. - I am a merchant in this town. I have known the prisoner six or seven years. In his transactions with me I have always found him honest. I believe he bore a good character.

Cross-examined. - I am a creditor under his insolvency for about £600. I am a wholesale merchant; he was a retail dealer.

J. G. Briggs, Esq, sworn - I have known the prisoner ten or twelve years; his general character was that of a good and industrious man. I am not a creditor.

Thomas Hewitt, Esq. - I have known the prisoner about nine years; he had a character for honesty.

His Honor summed up at great length, and the Jury, after a short deliberation, returned with a verdict of Not Guilty on the first count, and Guilty on the rest of the information.

On the re-assembling of the Court at 12 o’clock both Judges took their seats on the Bench, when the Chief Justice said that His Honor Mr. Justice Montagu had kindly consented to assist him to disposing of the points reserved upon Mr. Horne’s objections in Parker’s case. The Court was at this time, as it had been throughout the trial, crowded to excess with persons of all grades of society, who seemed with the most intense anxiety to await the decision of this much talked of and generally interesting case.

Mr. Horne, in support of the objections taken by him, produced a great variety of cases where bankrupts had been indicted for offences under the bankrupt laws of the mother country, and argued that by analogy, the practice in such cases at home should govern similar proceedings here under the insolvent laws. In England, the courts of law would not only look into the proceedings under a commission of bankruptcy, but will even review, and if found irregular, reverse those proceedings. If, observed the learned gentleman, the alleged act of bankruptcy may be looked upon at home, it follows that an alleged act of insolvency can be reviewed here. It is possible that no act of insolvency may have been committed, and it is just possible that upon a petition to this Court, even the authority of the Commissioner might be superseded. It becomes therefore necessary that the strictest legal evidence of the commission of an act of insolvency should be required to establish a conviction of this kind.

The learned Gentleman then raised a further objection to the form of indictment itself, which was, that in the 2nd and 3rd counts upon which the prisoner had been found guilty, it was not set forth by what authority he had been declared insolvent.

The Solicitor General replied, that with respect to the principal case cited by Mr. Horne, it had no bearing upon this case, because in that case the indictment was for perjury, before the Commissioners, and it was necessary for the purpose of establishing a legal perjury to prove that there was a sufficient authority in the person administering the oath, which disposed of the first objection. With regard to the second, it was an established rule, without exception, that all public officers were taken to be such if they have acted as such, and such proof has been invariably held good, unless proof were adduced to the contrary. If such objections as this were to be admitted, we might next have the authority of Sir John Franklin questioned to make any appointment. As to any objection to the form of the indictment, it was then too late to make it. It should have been made upon the trial, and moreover, it was entirely a new feature, and not one of the points reserved. He should therefore only add, that the present information was framed under a particular act, and therefore (the learned gentleman submitted) if proof sufficient to meet the provisions of that act were adduced, no analogy could upset the conviction?

A discussion then ensued as to whether the information was intended to allege that the prisoner had been “duly” declared insolvent.

The Solicitor General observed, that he had purposely omitted the word “duly”, to free himself from embarrassment; but candour forced him to admit it was bound to tender all the evidence he could to prove he was “duly declared,” as much as if the word had actually been inserted. It turned out, however, that by some oversight the only proof of any act of insolvency, which had been put in evidence on the trial, was the affidavit of Mr. Morrison, who swears “that he has been informed and believes” Parker had left his usual place of business, &c. The affidavit of a Mr. Olding, which went positively to the fact, and which was alluded to in the adjudication by the Commissioner, being accidentally omitted among the papers put in evidence.

Their Honors, were of opinion that this paper could not now be received, as it was impossible to say what effect it might have had upon the verdict of the Jury. To entertain any evidence now which was not adduced upon the trial would be an infringement upon the province of the Jury. And if, observed Mr. Justice Montagu, the conviction in a case of felony did not lie with the Jury, it would be making the Judge and not the Jury the Tribunal.

We regret we have not space for the whole of the discussion which follows; we have however given the essence of what took place.

On the conclusion of the argument, His Honor the Chief Justice said that he should not then deliver any opinion, as he did not feel in a position to do so. He would observe, however, that it appeared to him that the points for their Honor’s consideration were these:-

1st - If the form of the 2nd and 3rd counts of the indictment were correct; - 2nd. - When it is said in the information that the man was declared insolvent, does it mean “duly declared”, and is there sufficient proof of that?

His Honor Mr. Justice Montagu said, that as the Chief Justice had declined giving an opinion, he should also deliver none; but he could not help remarking, in reference to what had fallen from the Solicitor General, that it was never too late for a Judge to interfere on behalf of a prisoner, if he was of opinion that in any way he was illegally convicted. That opinion did not rest with the objections of this counsel or the other; and whether formed upon the suggestion of counsel or of his own mind, he could never assent to the doctrine, that where a Judge entertained such an opinion, it could ever[sic] be too late for him to recommend the Executive to pardon him, even after sentence. It is better for a guilty man to escape, than for an innocent one to suffer. The questions for their Honor’s consideration were, was the indictment properly drawn in itself; and it has been sufficiently proved. He should carefully examine the whole case, and if it appeared to him that the indictment was bad or law, or being good, that it had not been properly supported, he should feel it his duty to recommend the prisoner to be pardoned. His Honor would give his opinion to the Chief Justice.

The Chief Justice observed, that as an objection had been made, which was not one of the points reserved, and which was in the nature of a notion for an arrest of judgment, if the Solicitor General was desirous of adducing any further argument against it, His Honor would either have the prisoner brought up for judgment then, so that the argument might take place at once, or he would have him brought up next sessions.

The Solicitor General said that he did not think he could adduce any further argument, and therefore, if the opinion of the Court were in favor of the prisoner, it would be an act of injustice to cause his detention in custody.

The Chief Justice then proposed that their Honors should consider the case, and if it appeared to them that the conviction was bad, they should recommend his receiving a pardon; but, if otherwise, that he should be brought up for judgment on the first day of the next sessions.

This proposition being assented to, the Court rose, and the sessions terminated.

[1] See also Tasmanian, 26 July 1839, noting that the Solicitor General’s reply was contrary to the usual practice in criminal cases, and that he attacked the evidence of Stevenson and Newman, and the conduct of Parker.

[2] See also Tasmanian, 26 July 1839.