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Colonial Cases

R. v. Jones, 1867

[embezzlement]

R. v. Jones

Criminal Court, China
11 November, 16 December 1867
Source: The North-China Herald, 16 November 1867

 

LAW REPORTS.

CRIMINAL COURT.

November 11th.

Before R. A. MOWAT, Esq.

REGINA v. C.  T.  JONES.

   Before opening the case, the Magistrate wished to call attention to a paragraph which had appeared in the Evening Express, to the effect that the adjournment in this case had been - "Granted with the sanction of Mr. Mowat, so the reason for calling on the case in Mr. Jones' absence is not obvious, except to secure the ear of the public in the first instance and place the defendant at a decided disadvantage.  This would be the result gained by the prosecution." He only wished to refer to the statement in so far as it appeared to imply a bias, and could content himself therefore with denying that the adjournment was agreed on with his sanction.  It was made without his knowledge.  Indeed it had been a question whether the defendant should not be arrested, and this would have been done if he had not answered the summons.

   Mr. JONES could only say that the statement had resulted from a misunderstanding.

   The MAGISTRATE had not addressed Mr. Jones individually.  He was merely speaking with reference to a statement in the paper.

   Mr. JONES did not know whether this was the right time to make an application.  He was undefended, as Mr. Eames, who had promised to take up his case, was occupied elsewhere.  Would the Court permit his side of the case to be heard tomorrow?

   The COURT, with the consent of the Counsel for the prosecution, acceded.

   Mr. JONES denied the charges and asked who was his accuser.

   Mr. MYBURGH appeared under instructions from H.B.M. Consul, on behalf of the Queen.  The charge which was laid against the defendant was a most serious one.  It was that, whilst in the H.B.M. Consular service, he had embezzled, in the first place a sum of $197, and in the second a valuable security in the shape of a cheque for Tls. 1,414.48.  The charge was so serious that, he submitted, it should not be disposed of summarily.  The proceedings, to-day, were only to elicit facts for immediate action.  He would ask the Court, it if considered a prima facie case had been made out, to commit the accused to take his trial before a Jury.

   The first charge was, the embezzlement of $197, which Jones, being at that time in charge of the Consular accounts, had received from Messrs. Geo. Barnet & Co., on account of the estate or a man named Hitchcock to whom that amount was due.  It had been paid to Jones, who had signed the receipt for it, on the 2nd December.  But up to the 29th July it had not been accounted for in the Consular books.  And it was only on Hitchcock's representatives applying, that H.M. Consul ascertained the amount had been paid into the office.  There was no entry in the books, but Jones' receipt was conclusive as to the receipt and misappropriation of the money.

   The next charge was that, on the 26th January, he had received a cheque for Tls. 1,414.48 on the Chartered Mercantile Bank, made payable by Messrs. Nicholson & Boyd to the estate of A. M. Nicholson, who died intestate.  Of this fact, too, nothing had been discovered till the 16th July.  The books showed no entry of its receipt, not was a report of the receipt made to Mr. Winchester.  If these payments and trhe absence of any account of them could be shown by evidence he (the L. C.) submitted that he should have made out his case.  And he should be able to produce abundant proof to this effect.  Besides this, Jones was actually short of the sum of Tls. 3,000 in cash due to the Consular chest.

   C.  A.  WINCHESTER, I am H.B.M. Consul at this port.  I assumed my duties on the 2nd August 1865.  At that time Mr. Jones was senior assistant and in charge of the accounts.  He had acted, in the interval between Sir Harry Parkes' departure and my arrival, as Vice-Consul.  He was in the habit of receiving all monies paid into the Consulate.  He is not now in the service.  He has been dismissed, in consequence of defalcations. 

   He was still in the service and in charge of the accounts in Decr. 1865.  I was not informed by him of the receipt of any sum on account of the estate of a man named Hitchcock, nor did I know of the receipt until it was reported to me by Mr. Jamieson in July last.  I then directed an immediate examination of the accounts, and found no entry of such amount to the estate of Thomas Hitchcock.  Mr. Oliphant of G. Barnet & Co., produced to me first, and afterwards sent to me, a receipt for the amount signed by Mr. Jones "for H.M. Consul."  The receipt was a printed form of memorandum.  In January, Mr. Jones was still an assistant and still in charge of the accounts.  Up to February 1867, I was not aware that any money had been paid to the account of A. M. Nicholson, nor that anything had been done in the estate in his name.  Sir E. Hornby received a letter from Lord Stanley (the charge of intestate estates having been vested in the Chief Judge) requesting that he should enquire whether certain amounts had been received.  This led to enquiry, Mr. Jones had then left the service.  I communicated with Mr. Boyd, the firm in which deceased was a partner; and learned to my surprise that Tls. 1,414 had been paid by that firm.  A receipt was produced signed by Mr. Jones.

   One of the books kept by the consulate is a book containing payments on account of deceased estates.  I at once examined this book and all others in which the entry would possibly have appeared.  Mr. Murray, the Legation Accountant, was specially sent by Sir R. Alcock to enquire into the accounts.  The result was that Mr. Jones was estimated to owe the Crown $4,512.69, which either has been, or apparently has been, collected.  It was Mr. Jones' duty to report the receipt, and payment of the amounts spoken of.  Mr. Jones was under special orders to report the receipts the day on which they were paid.

   To Mr. JONES. - I am not aware whether any copy of the report has been furnished to you.  I believe that you do dispute some of the items in the account.  I believe Mr. Jones does dispute accuracy of the item "Juridical pleas" which amount to $647.87.  Mr. Jones also disputes the Custom House claim.  But the papers connected with the latter have been laid before Sir E. Hornby and he has declared that he is liable. The Tls. 1,414 is entered in the bank pass book.  He gave up that pass book and the cheque -book to me.  I believe he took some books away and returned them afterwards.

   Mr. JONES here reminded Mr. Winchester that the books in question had been found in a drawer in his desk in the Consulate.

   To JONES. - I think I do remember them being found there.  A document connected with the Tls. 1,414 was found at the bottom of a box containing papers relating to Nicholson & Boyd's estate.  Mr. Mitchell did make me a proposal with reference to taking your affairs out of the Bankruptcy Court.  I did not accept that proposal.  I wrote to Mr. Mitchell that I thought the offer was a fair one.  This sum of Tls. 1,414 was one of the liabilities.  It was not in consequence or Mr. Murray's coming that I did not enter this claim as a debt to H.M. Government.  I determined on my own account not to do so.  I simply received the proposal you made through Mr. Mitchell, and listened to it.

   Re-examined by Mr. MYBURGH. - The pass book contains entries on Mr. Jones' private account, as well as the public account.  I find private entries in it.  I first saw his pass book about the 6th February, 1866.  The accounts come up to that date.

   To COURT. - I did not previously know that Mr. Jones kept an account at the Oriental Bank.  I may have known that he had an account there on the 25th January.  Between August and January I assumed that the public money was kept in the chest or with the compradore.  I think I must have begun to learn about December, that Mr. Jones was in the habit of keeping money in the Bank.  I do not remember asking any particulars where the balance was kept.  I was much dissatisfied with the way in which the accounts were kept, and I wished a daily cash book kept.  I am sorry to say none had been kept before January.  I gave you instructions to begin keeping one on the 1st October, but you always evaded doing so.

   GEORGE JAMIESON. - I am an assistant in H.M. Consulate.  I took charge of the accounts on the 14th September.  There was then no entry in the books in the name of Hitchcock.  I made an entry on the 20th September this year.  In January, 1866, there was no entry of Tls. 1,414 to the account of Hitchcock, I made an entry to this effect on the 21st February 1867.  There is no Memorandum book in my possession containing an account of these entries.  I was not aware of these payments having been made till February and July 1867.

   To JONES. - Hitchcock was discharged from the Tunsin, in November 1866.  He was not registered as a Master Mariner.  I am aware that if Seamen die before they have been on shore six months, they are technically considered seamen.  In Hitchcock's case therefore the entry would be in the Board of Trade accounts.  I have examined those accounts.  The entry does not appear there.  I have since found from an entry that there that you paid his funeral expenses, amounting to Tls. 8.  I also found among the papers an unreceipted bill from Todd & Co. which I since discovered Hitchcock had paid himself.  I keep a daily cash book now.  I am aware that there w as a surplus balance in your favour on (a date mentioned).  We made up the accounts from various sources, the books were so badly kept that we failed to get any satisfactory result.

   Mr. JONES here said it might save time if he admitted the receipt of the $197 and Tls. 1,414.

...A. C. OLIPHANT. - I produce a receipt paid in to the Consulate on account of Mr. Hitchcock, the the amount of $197.

   P. V. BROWN, Clerk in Nicholson and Boyd. - I remember the firm paying Tls. 1,414.48 in to the Consulate, to the account of the late Mr. Nicholson, I brought the cheque and tendered it myself to Mr. Jones.

To JONES. - I believe I handed the cheque to you on the 26th, before noon, but I am not positive.

   WM. J.  E. STEWART, assistant accountant in Chartered Mercantile Bank. - I produce a cheque drawn by Messrs Nicholson and Boyd in favour of the estate of A. M. Nicholson deceased.  The cheque has been paid.  It is endorsed by C. T. Jones.

   Mr. MYBURGH said this was all the evidence he meant to produce.  It was a question for the Court whether the accused should be committed or be required to find bail.

   The COURT must follow the usual course and require bail for L. 200, and two securities on L. 100 each.  The case stood adjourned till the following day at 2 p.m.

November 12.

   Mr. EAMES appeared, on rather short notice, for Mr. Jones, and owed the Court an apology for the adjournment.  If the Court thought the testimony that had been offered by the prosecution sufficient to justify a committal, it would of course be idle to take up time now, by entering on a defence.  He would only express a hope that if the accused were committed, a moderate bail only would be asked from him.  His position was well known in Shanghai.  He had come back here and remained here a long time, knowing that there was a deficit in the Consular accounts, though hardly anticipating a criminal prosecution.  It would be madness for him to have waited so long and now to abscond.  He would therefore ask the Court to fix an easy bail, as it would be impossible for him to obtain it to a large amount, and the result would be to necessitate his remaining in jail until the day of trial.

   The COURT. - The Summons charged Charles Treasure Jones with having embezzled the sum of $197 and a valuable security of Tls. 1,414, which he had received in his capacity as a Consular employee.  I need hardly remark that the evidence offered yesterday contained all the prima facie evidence of embezzlement necessary to warrant me in committing him for trial.  While a clerk in a public office he received money and security on account of his Master, and prima facie evidence of embezzlement lies in the fact that, having received them, he did not account for them.  It is my duty therefore to commit the accused for trial on the charge named.  I shall be happy to consult your (to Mr. Eames) convenience in fixing a time for the trial.

   Mr. Eames said this would depend much on the time required to investigate the books.  It was eventually agreed to leave the time an open question.

   In fixing the amount of bail, the Court referred to the serious nature of trhe charges, which amounted to felony.  But reference must also be had to the position of the accused, whose affairs were in bankruptcy and whose own recognizances, therefore, were not worth much.  Two securities therefore would be required of L. 200 each, and accused's own recognisance for L. 500.

   Mr. Tarrant and Mr. Rosenthal tendered the necessary security.

 

Source: The North-China Herald, 24 December 1867

H.B.M. CRIMINAL COURT.

December 16th.

Before Sir E. HORNBY, and

Messrs.  Donaldson, Munro, Turner, Palamountain and Crofts, Jury.

REGINA v. JONES.

   Mr. Myburgh appeared for the Crown.

   Mr. Eames defended the prisoner.

   Mr. MYBURGH objected to Mr. Donaldson.  He had been instructed that Mr. Donaldson was under obligation to Mr. Jones, who had succeeded in getting a relation of Mr. Donaldson temporary employment in the Consular Service.  It might perhaps be inferred that this obligation might influence Mr. Donaldson's feelings.

   Mr. WINCHESTER confirmed the statement.  Mr. Jones had introduced a son of Mr. Donaldson's to him as an applicant for temporary employment, which had been given him.

   The CHIEF JUDGE had perfect confidence in Mr. Donaldson's integrity; but it was desirable in all cases of trial that no suspicion should by any possibility rest on the public mind, of partiality on the part of any juryman.  He must therefore call on Mr. Donaldson to withdraw.

   Mr. DONALDSON said he had never known Mr. Jones; not was he aware till this moment, that Mr. Jones had been instrumental in getting his son into the Consulate.

   Mr. Myburgh withdrew his objection, and the Chief Judge requested Mr. Donaldson to remain.

   Mr. MYBURGH - Explained that the indictment charged Mr. Jones with having, while he was a clerk in Her Majesty's service, embezzled to sums of $197 and Tls. 1,414.48.  He appeared on this occasion in his capacity as Counsel for the Crown, to perform a painful duty.  He had to press a serious charge which, if substantiated, involved serious consequences.  Mr. Jones was doubtless known to all the gentlemen of the jury, both from the long series of years he had resided in Shanghai and from the position he had held in the Queen's service.  He would simply say that, while in that service, he had enjoyed a character for honour and uprightness and would have been conceived incapable of the acts with which he was charged.  But unfortunately for our faith in man's goodness, many men had been seen, at different times, in the prisoner's position, who had enjoyed an equal character with himself.

   His (Mr. M.'s) duty was clear.  The day had gone by when it was the duty of the Crown Counsel to persecute instead of prosecute prisoners.  His duty was, now, to simply lay the facts before them, facts which he believed he should be able to prove; and, in doing so, to make such comments as the facts would justify.  It was for the jury to form an opinion on these facts.

   The prosecution was not a personal prosecution; it was not instigated by personal malice or spite.  So far as Mr. Winchester was concerned, Mr. Winchester had shown throughout the investigation, an amount of leniency which some might consider indiscreet; and if capital were made of that lenity, he feared it would be a lesson to Mr. Winchester to be more careful of similar indulgence in future.  Mr. Winchester was not the prosecutor; he was only acting nominally as prosecutor, under instructions from the Foreign Office - instructions which were imperative, and which it was his duty to carry out. Neither was the prosecution instigated by Mr. Winchester, who regretted as much as any person could do, to see the prisoner placed in the position he now occupied.

   The charges against the prisoner were, as had already been explained, that he had, while in Her Majesty's service, embezzled two sums - one of $197 on the 2nd December, and the other Tls. 1414.48 on the following 26th January.  He might here add that, if the jury were of opinion that the prisoner had not been guilty of embezzlement, they might still find him guilty of larceny; and it was right that he should point out the difference between the two crimes.  They differed in this.

   Embezzlement consisted in the appropriation of sums which had never passed into the possession of the actual owner; whereas larceny implied the wrongful and fraudulent taking away of goods belonging to another, with intent to convert them to personal use.  The distinction in fact, he might say, was this.  A clerk who received money over the counter from a customer, and who appropriated it without putting it into his employer's till, was guilty of embezzlement.  If he put it into the till and took it away again, his crime was larceny.  If the jury considered, therefore, that Jones had been guilty of appropriating to his own use, sums which he had received and paid into the Government account, they would find him guilty of larceny; but if they found that he had appropriated these sums without accounting for them, he would be guilty of embezzlement.

   The indictment which they had heard read, charged the prisoner under Act 24, 25 Victoria, Cap. 96, Sec. 68, which provided that  any clerk or servant who fraudulently embezzled any chattel or valuable security, should be deemed to have stolen it, and be liable to not more than 14 years, nor less than 3 years penal servitude, or to two years imprisonment, &c.  Section 70 of the same Act provides a nearly similar punishment in a case of larceny. 

   As he (Mr. M.) had said before, it was his intention to confine himself, as far as possible, to a fair statement of the facts of the case.  But it was necessary to go a little further back, in order to explain fully the circumstances under which it had arisen.  Mr. Winchester had arrived in Shanghai and taken over charge of H.B.M. Consulate on the 2nd August, and would state in evidence that - Mr. Jones being at the time in charge of the accounts - he did not receive any statement of accounts from him; nor was he informed, till the 22nd August, wheat balance was in hand.  On that day, he received a statement under one of the three sets of accounts which the Consulate accounts involved; namely, the Regular Account, which included salaries and disbursements - in fact all strictly Government monies; the Seamen's Account; and, lastly, the Miscellaneous Account, into which money received from Intestate Estates and Judicial fees were paid.  Mr. Winchester would say that the memorandum handed to him by Mr. Jones showed a balance to the credit of the Regular account, of $800; and in respect of Intestate Estates of Tls. 469.  He would also state that, he particularly asked Mr. Jones whether there were any other moneys, and Mr. Jones had answered that there were not.

   It was here necessary to explain that it fell to the duty of the Supreme Court, which was established here on the 4th September, take over charge of Intestate Estates.  But, the machinery of the Court not being yet quite perfect, Mr. Fraser, who was then acting as Law Secretary and Registrar had requested Mr. Winchester to assume the management of certain estates temporarily.  He did so; and constantly urged on Jones to wind up and close the outstanding accounts.  So far as Mr. Winchester knew, there was, at this time, only one account kept with the Oriental Bank, under the heading at first referred to - the account out of which salaries and disbursements were paid.  All other monies were supposed to be in the safe kept in Mr. Jones' room or in the hands of the compradore.  Mr. Winchester was not informed that, as would subsequently appear, there were large sums in Jones' hands, in the shape of deposit fees.  From what transpired on a previous occasion, in connexion with this case, he (Mr. M.) could only conceive one defence that could be set up - namely, that Jones had so mixed up his public and private accounts, that he had overdrawn large sums without knowing it.  He would point out, bye and bye, that this was no defence.

   He would now say, in order that there might be no cavil hereafter, that Mr. Winchester did not know till December 1865 that another account of public monies than the one he had mentioned, was kept at the Oriental Bank.  As soon as he did find this out, he (Mr. Winchester) urged Jones to show him this account; but was put off by excuses and evasions till the end of January or the beginning of February, when he discovered that, in addition (two separate accounts were kept in Mr. Jones' name in the Oriental Banking Corporation one for dollars the other for taels) to the "regular" Account, one was kept under the head C. Treasure Jones, H.B.M. Consulate, Shanghai.  This account was kept both in Taels and dollars; and being balanced showed an apparent surplus on one side and a deficiency on the other, which were set against each other.  But in order to prevent any possible blunder or confusion, Mr. Winchester insisted that these accounts should be changed to the heading "C. Treasure Jones' Public Account."  Mr. Winchester had, it must be remembered, all this time, implicit confidence in Mr. Jones, and went to Hongkong leaving him in charge of the accounts as before.

   THE CHIEF JUDGE regretted to interrupt Mr. Myburgh; but could not see that any facts in regard to the general deficiency, bore on the question.  The question should be confined to the two points raised in the indictment.

   Mr. MYBURGH quoted authority in support of his view, that evidence regarding general deficiency was admissible.

   The CHIEF JUDGE thought it had been admitted in the case referred to, because it had been difficult to fix on any particular acts, but here two distinct charges were specified.  General accusations might prejudice the jury.

   Mr. MYBURGH con tended that it was important to shew what the actual deficit in Jones' accounts was; because it was important to show the intent.  If the deficiency were so large that Jones could not hope to make it up, it would be evidence of intent to defraud.

   Mr. EAMES objected that the line Mr. Myburgh was taking was objectionable on two grounds.  It was objectionable as going into general character, which he had no right to do, and as opening half a dozen charges which did not appear in the indictment.

   The COURT ruled that the matters touched on were irrelevant.

   Mr. MYBURGH bowed to the decision of the Court, and would confine himself to the two amounts referred to in the evidence.

   In respect, then, to the $197, Mr. Winchester would state that, in the month of December, when this sum was received, Jones had no authority to receive any sums on behalf of Intestate Estates, except such as were administered at mr. Fraser's especial wish.  Mr. Fraser had not asked that Hitchcock's estate should be administered, and Jones, therefore, had no authority to act in the matter.  But he had done so, and no entry referring to it could be found in the Consular Books.  It was not till this year that, in consequence of Messrs. Geo. Barnet & Co. alleging to the Consul that such a sum had been paid in, Mr. Winchester had been put upon his enquiry; and even then, failing to detect any trace of such an entry, he would have repudiated it, if Geo. Barnet & Co. had not produced a receipt for the amount, signed C. Treasure Jones. 

   With regard to the Tls. 1414, appertaining to the estate of Mr. Nicholson; so far as Mr. Winchester was concerned, he had not the most remote conception that any money had been paid in, to the account of this estate, till the Foreign Office wrote out, in February 1866, to make enquiry regarding it.  He was then, again, put upon his enquiry, and communicated with Mr. Boyd, a partner of deceased, who produced Mr. C. T. Jones' receipt for the amount. He might explain that no Miscellaneous cash account had been kept at the Consulate, till the 1st January 1866; but a separate account was kept in the ledger showing receipts and disbursements on such accounts as the one in question.  He referred to the Miscellaneous cash account, which Jones had then commenced, butr still found no trace of it.  The only trace was, in Jones' Tael account with the Oriental Bank, where the entry of Tls. 1,414.48 did appear, but without any indication to what it referred.  That Jones had received the money and appropriated it, seemed undoubted.    It was impossible for him to have received and paid monies, as he had done, on Hitchcock's account, without again and again having that account brought to his mind.  But there was no entry referring to it; and Mr. Winchester knew nothing about it.  On the 1st January 1866, a Miscellaneous account had, at length, been opened, and there should have been an entry on that date. That the money was re-called to his memory was clear, because it would be proved that he had made a payment on account of the estate, on the 18th January, only six days later.

   Reverting to the sum of Tls. 1,414.48, it was most singular that it should have been received and no instructions given regarding it.  The money had not been accounted for, and the accounts were short of more than this amount.  What had been done?  Did Jones take the money by mistake?  It was impossible for him to have done so without knowing that he was doing wrong.  He might have taken it, intending to replace it when called on.  But this intention would not screen him.  The act was wrong in its conception, and he must take the consequences.  He (Mr. Myburgh) would not attempt to hint where it went to.  It might have been spent.  It might have been lost in speculation.  Jones must have known that it was Government money, and that he had no right to apply it to his own use.  A great deal of the defence might probably be hinged on the Bank book.  It was impossible to gather from this, under what circumstances the entry was made; and Mr. Winchester had no idea, until he heard from the Foreign Office, that the entry it contained referred to the case in question.  It was sometimes supposed that, if a man made correct entries in his book, this shielded him from any charge of misappropriation.  But he thought the Court would assure them that an entry did not do so. 

   The simple question was, whether Jones appropriated the money to his own use.  Entries were sometimes made to deceive.  Cases of embezzlement frequently occurred, as well as in which there were none.  He would only refer to one case in support of his position (Russell on crimes - King v. Widdell).  When Mr. Winchester discovered these discrepancies, he begged Jones to explain fully what he had done with the money; and he attributed it to speculation in the Shanghai Recorder newspaper. Mr. M. here referred again to a case cited by the same authority (P. - 461-2) in which a Revenue officer was convicted of embezzlement, which was, he contended apposite to the present case.

   He did not think he should be going beyond the province which had been marked out for him by the Court, in stating that the accounts, when finally made up, showed a deficit which, with certain exceptions, Jones himself admitted.  If he had been allowed to go fully into the circumstances of the case, he might have succeeded in making it more clear.  Mr. Jones had the advantage of possessing an able defendant in his learned friend Mr. Eames, and anything that could be urged in his favour would be urged.  What the jury had to ask themselves was, whether he knew that the money was Government money, at the time he appropriated it; and if so they must convict him.  If they believed he did not know it was Government money; that he had made every enquiry and research, and believed it to be, not Government money, but his own, the charge must fall to the ground. He was sure that he might safely call on the jury to give thr case all the patience and attention which its importance demanded.

   C. A. WINCHESTER. - I am H.M. Consul at this port.  I arrived here 1st August 1865, and next day advertised myself as having assumed charge.  I received no statement of accounts from Mr. Jones at the time I took charge.  Under ordinary circumstances I should not have entered on charge until I had received some account and the balance monies; but there was a reason which induced me to enter on charge at once.

   I did not receive a statement of accounts from Mr. Jones till the 22nd August.  When I came to the Consulate, the Regular account, which is the account for strictly ordinary expenses, was kept, and all Consular and judicial fees ought also to have been entered in this; the Seamen's account was also kept, and balanced quarterly.  There ought to have been another General or Miscellaneous account.  There was non e such.  Mr. Jones, on 22nd August, produced a memo. of the state of the Consular chest, which has reference solely to the Regular account and the Intestate Estates account.  In regard to Intestate Estates, each Estate has a separate account in the ledger.  Mr. Jones furnished me, on the same day with a memo of unclosed estates in hand.  On the 4th September, the Supreme Court assumed charge of Intestate Estates.  I therefore hastened to transfer the responsibility to it.  I was anxious to do so, as there was no Miscellaneous account.  I asked Mr. Jones to prepare a fair balance sheet; that was his duty.  He only furnished me with the memo I produce shewing a balance of Tls. 467.75, on account of Intestate Estates.  I got no memo of the amount of judicial deposits.

   (The Court remarked that these had nothing to do with the account under which the charge was entered.)

   These were in the Miscellaneous account so far, that they were not entered in "Regular" Account till the case they referred to was decided. I knew there were judicial fees in Mr. Jones' hands.

    I was never requested by Mr. Fraser to assume charge of Hitchcock's estate. I first heard of the existence of the estate in the hands of the Consulate, on Messrs. G. Barnet applying to me, in July this year, respecting it.  I then examined all the books, and could find no entry of any such money received.  Messrs. Geo. Barnet enquired whether the sum had been remitted.  There was no Miscellaneous cash book before the 1st January.  I saw that was the vice in the system of Consular accounts, and pointed out the necessity for keeping such an account.  Mr. Jones was charged with keeping it.  The account book produced is in his handwriting, up to the end of January.  The payment on account of Hitchcock's estate was made in December.  The entry should have been in the January account.  There is no entry of this amount in January nor in any subsequent month. 

   I was not informed of any payment on account of Nicholson's estate, in January 1866.  I was first apprised of such payment, in consequence of enquiries instituted in a Foreign Office despatch, referred to me by His Lordship.  This was towards the end of February 1867.  I sent for Mr. Boyd to ask him about it, knowing that he was administering the estate; and he told me that the payment had been made, and produced Mr. Jones' receipt for Tls. 1,414.48. This appeared neither in the Cash book nor in the General ledger.  I directed Mr. Jameson to search, and did so myself. 

   These estates were kept under the superintendence of Mr. Jones.  Mr. Jones has ceased to be in the service.  After these discoveries, I spoke frequently to Mr. Jones on the subject of these deficiencies.  I was anxious to save him from the consequences.  And I strongly advised him to give me a clear statement of all deficiencies, as the only means of doing so.  I did this in the presence of Mr. Markham. He gave me no statement of either of these cases.  Mr. Jones has been informed of these deficiencies.  I informed him of the Nicholson case in a dispatch.  I did not inform him of the Hitchcock affair officially.  I sent Mr. Jamieson to him. I have had so many conversations with Mr. Jones on this subject, I have not had much communication with him since he left for Amoy.  Mr. Jones ascribed his deficiencies to his involvement with the Recorder.  These two amounts have not been made good by Mr. Jones.

   To Mr. EAMES. - I took charge on the 3rd August.  I knew nothing of the business of the Shanghai Consulate when I came here.  Probably there were large sums floating about.  I enquired what the balance was.  I discovered there was no Miscellaneous cash book.  As far as I remember, I believe that I pointed out the necessity for such an account at the time I received the memo.  I did not order its commencement so peremptorily, till 1st January.  I was satisfied the loose way in which the accounts were kept was likely to lead to error.

   Let me state that I was acting as judge during the first month of my residence here, and presided, I think at some forty sittings of the Consular Court.  So I had not time to give much attention to other matters.

   The Miscellaneous cash book started from January.  The accounts was to commence in this way.  As no balance could be carried over the liabilities on each estate or separate account were to be placed to debit on the 1st of January and spaces were left on which the particular sums might be entered in this way.  (We failed to quite follow this explanation.)  These items were all entered on the 1st January.  They may have been partly made up from memoranda.  My instructions were peremptory to begin the M. A. on the 1st January.  It was partly made up from memoranda, subsequent to the date of those memoranda.  We were to start with a statement of all sums due.  A certain space was left blank, to enable Jones to put in accounts that might come to light subsequently.  The memo Mr. Jones gave me on the 22nd August, was correct in respect to the estates mentioned.  These sums had been paid way before 1st January 1866. 

   I had no knowledge how these monies were kept, not can I charge my memory with any knowledge of Mr. Jones' bank account till the 18th December 1866.  My attention was then aroused by a cheque sent to the Supreme Court on account of Intestate Estates.  The change in the Bank account was made on the 6th February; the two sums in question were received between the two dates of 2nd December and 6th February 1866.  After the 4th Sept., four or five estates were left in Mr. Jones' charge.  I distinctly told him he was to have no other estates except such as should be specially intrusted to him.  There were some classes which Mr. Fraser did not wish at that time to have charge of, viz.- Those which involved correspondence, as with the customs and Foreign Consuls, and ship masters' estates which under the then existing instructions might be treated either as of Intestate subjects or as Seamen.  Hitchcock was not technically a Seaman.  That he was not considered so by Jones, I have proof in the funeral book, in Jones' handwriting.  There is an entry "Hitchcock Tls. 8," on January 18th, as of a "deceased subject intestate." The "distressed Seamen's" accounts are in another part of the book.  The "distressed subjects" would be separate, too.  Hitchcock was in charge of a steamer without a register.  He was not technically a seaman.  Mr. Jones had no right to receive anything on account of Intestate Estates, except after reference to me.  I stated that, at first, we did, with a view of saving Mr. Fraser trouble, take charge of certain estates.  Mr. Jones was perfectly instructed that he was not to act without referring to me.

   The system of accounts was very loose.  There is a deficiency previous to Mr. Jones' time, of a considerable extent.  Mr. Jones was in charge of all the accounts of the Consulate, and the Shipping Office, with two or three clerks - Mr. Tapp, Mr. Bate, and another.  Between 3rd August and following January there were sums paid out on miscellaneous accounts.  I did not sign any cheque till I took charge on 13th March, and put the banking account in my name.  I did not know anything about Mr. Jones signing cheques, as the account was in his name, not in mine.  Mr. Jones never gave a balanced account as he ought to have done.

   The letter of 23rd June 1865 which was written relative to Nicholson's account, was I believe, known to Mr. Jones.  The accounts were examined by Mr. Rennie and Mr. Murray.  Mr. Jones made no explanation relative to the deficiency in the accounts, but objected to Mr. Rennie's survey, saying it bore hardly upon him.  He, Jones, came up to examine the accounts and there was then a balance against him.

   The CHIEF JUDGE wished to keep to the question, which was, simply, whether Jones did receive the two sums and appropriate them to his own use.  No doubt the accounts were in a great state of confusion; but we ought to limit enquiries to the questions at issue.

   Cross-examined. - I went to Hongkong on 8th February.  Before I went, I was much dissatisfied with the system of keeping accounts, and I consulted with Mr. Stewart of the Oriental Bank.  Mr. Jones promised me to extricate his private accounts from the public account in the interval but he did not do so.  I tried to induce him to make a clear statement of his accounts, as it would be for his own advantage.  I believed, after that time, that he was an unsafe person to trust public money to.  It was only after four different applications for sums, that I came to the resolution of reporting him officially to Sir Rutherford Alcock.

   To COURT. - I had not discovered the deficiencies referred to in this case.  I had letters from the Foreign Office relative to certain estates; and told Jones that the next time I had a complaint, I must repiort it officially.  Mr. Mitchell called on me and said Jones had asked him to try and settle the affair.  I don't want to say Mr. Jones is a felon.  That is a question for the jury.  Mr. Mitchell said Jones was entitled to certain reversions, and he hoped I would not press the matter.  I replied with respect to government accounts, I could not do anything except under orders, and stated that I would report.    As regards my private accounts, I was willing to do as the other creditors.  An amount of Tls. 1,100 was trice remitted by Jones.  Two amounts were received by him and credited before he got the money, I did not attempt to enter the public claim at the Bankruptcy sitting.

   To Mr. MYBURGH. P- Up to

    The 18th Dec. I thought the money received by Jones was kept with the compradore.  I requested him top show me the pass books of the Oriental Bank Corporation, but could not get them till the end of January; and I then again insisted on a full statement of accounts being made out, and he solemnly promised that he would during my absence prepare a correct balance sheet.

   Mr. MYBURGH asked to put the Consular Books - Ledger and Cash books - in. as evidence - allowed.

   ... A. C. OLIPHANT - Of the firm of Geo. Barnet & Co. - I produce a receipt for a sum of money $197 paid into the Consulate on 2nd Dec. 1865.  It is endorsed by Jones (Order produced.)

   P. V. GRANT. - I am clerk in the employ of Nicholson & Boyd.  I produce a receipt for Tls. 1,4141.48 handed by me to Jones on account of estate of A. M. Nicholson.  It is signed C. T. Jones, dated 26th January, 1866.

   W. J.  E. STEWART, assistant in Chartered Mercantile Bank.  I produce a cheque dated 26th January, drawn by Nicholson & Boyd and endorsed by C. T. Jones.

   (The closed the case for the prosecution.)

Mr. EAMES, in opening the case for the defence, said this case was of a very grave nature and fraught with grave consequences both to the community, and the prisoner at the bar.  The question at issue was, as his learned friend had said, whether the prisoner did appropriate the moneys as alleged.  He would remind the jury that, even if the prisoner had been guilty of negligence, it did not amount to felony.

   There were great doubts as to whether he did receive the $197, he certainly did endorse the order, but there was no proof he got the money.  The prisoner had on two occasions credited the Consular accounts with money when he had not received it, and had even paid money twice on the same account, but fortunately this error was discovered by the Board of Trade.

   The jury must not forget that the accounts of the Consulate were in great state of confusion at the time these deficiencies were discovered. In fact, the Consul saw how bad the system was, and set about changing it.  The prisoner did not begin this state of things, it was so when he came there, and he (Mr. Eames) thought that Mr. Winchester, as head of the Consulate, ought o have seen to this and remedied it at once.  He believed it was a well known fact that the members of the Consulate Body at that time were very much overworked, including the Consul himself.  Jones kept his private account mixed up with the public accounts with the knowledge of the Consul himself. 

   (Mr. Myburgh here interrupted the speaker, saying that Mr. Winchester did not know of this till February.)

   Even supposing the Court did hold that he had received this money it simply amounted to his being a debtor to the Crown, but not to embezzlement.  Embezzlement was, he understood, stopping money from its proper channel and appropriating it to his own use.

   The CHIEF JUDGE begged to refer Mr. Eames to the 70th Section of 24 and 25 Victoria, which stated that if any public servant appropriated public money, the same must be considered as having been stolen from Her Majesty.

   Mr. EAMES remarked that this would place all subordinates in a very precarious position, as they would be liable to prosecution, even if they obeyed the orders of their superiors.  It sis not seem clear to him what the duties of assistants in this Consulate were.  It seemed to be conducted on very economical principles.  He must again repeat that, if the prisoner were guilty even of gross negligence, that did not prove a felony.  The learned counsel then referred to several cases (Rex v.  E. Hodson,) (Reg. v. Jackson) (Reg. v. Jones) in support of his argument that, where a sum is entered although not received, it does not ambient to embezzlement.  In conclusion, he would state that no final accounts were made of the estates, and the deposit fees were not even entered until a case was concluded.  He would first call, -

   JOHN MARKHAM. - Mr. Jones was in charge of accounts when I was in charge of the Consulate.  The accounts were in the hands of Mr. Jones entirely.  The money paid on account of deceased estates did not go into the general account.  Mr. Jones had but one account at the bank as far as I know.

   To Mr. MYBURGH. - Mr. Jones did not put amounts received on accounts of deceased estates, amongst the regular account.  I did not sanction his mixing up his private accounts with the public one.  I knew that difficulties relative to money matters arose after Mr. Winchester taking charge.  I remember Mr. Winchester asking Mr. Jones to alter his system of accounts and to start a miscellaneous cash book.  Mr. Jones told me that he thought the money was gone, was swamped in the Recorder.  I have no distinct recollection as to what occurred between Mr. Winchester and Mr. Jones.

      To Mr. EAMES. - I was only in charge for a short time, so did not enquire into the state of things, or whether Mr. Lay kept his accounts so.

   THE COURT. - It is perfectly immaterial what his predecessor did.

   Re-examination continued. - I do not know whether Mr. Lay or Mr. Jones kept their public and private accounts together.  I don't think Mr. Lay did so.

   COMPRADORE of the Consulate. - It was my business to collect money &c., for Mr. Jones.  If money was collected and paid in on same day, it was not entered in the book, but if it was kept I entered it.

   Mr. EAMES said witness had said differently before.

   Cross-examined. - If there were many orders and I could not collect them on same day, I entered them.  (Account for $197 produced) that is not my writing.  I did not collect it.

   To Mr. MYBURGH. - On the back of the order is written - paid to the consulate on 4th December 1865 - $197.  The $197 does not appear in Mr. Jones account with me.

   Mr. EAMES said this closed the case for the defence, and remarked that whatever the jury might believe about the negligence of the prisoner, they must not weigh that in their minds as tending to prove him guilty of the charge against him.  It seemed highly probable that the Consul did know that Jones was mixing up his own accounts with those of the Consulate, at any rate it was reasonable to infer that as he was keeping both accounts in his own name.  The whole affair amounted simply to breach of trust, but that was not felony. He would mention that it was for the Crown, not for him (Mr. E.) to disprove it, and they must prove that it is not the result of negligence on the part of the prisoner.

   The learned counsel then went on to argue that, if Jones had been appropriating these moneys wilfully, was it not highly probable that, when urged by Mr. Winchester to make a clean statement, he would have done so.  And it was proved by the evidence for the prosecution that he left all his papers, &c., behind him at the Consulate, and made no attempt to conceal or destroy any.  With regard to the compradore's order for $197, which was endorsed by Jones, it is not at all an unusual thing to endorse accounts and not collect them until several days had passed; and even then there was no proof into whose hands the money went.

   As was stated by his learned friend, Mr. Jones had been a long time in the Consular service; and if so, he would naturally have a position which he would not like to lose, and it was not likely he would destroy all his chances of promotion for such a sum as Tls. 1,400; if it had been Tls. 50,000, this argument might not perhaps hold good.  With these remarks the learned counsel concluded, saying he left the case in the hands of the jury with perfect confidence that they would do justice to both sides.

   Mr. MYBURGH rose to reply, - As he had anticipated, the defence set up was that the failure to account for the receipt of the two sums mentioned in the indictment, was simply owing to a mistake on the part of mr. Jones; that this mistake mainly arose from the confused state of the Consular accounts; that this confusion existed before mr. Jones' time; and that, at the most, he could only be considered guilty of negligence.  This was the sum total of the defence.

   But he (Mr. Myburgh) must remind the jury that they must confine their attention simply to the two charges laid in the indictment, and to the evidence adduced in support of them.  That whether the accounts were in a confused state or not, was of no consequence, and that, therefore, they must rid their minds of that entirely.

   It had been proved by Mr. Winchester that, on his first discovering the unsatisfactory system of accounts, he had endeavored to remedy the defect, and to introduce a new system into the Consulate.  That, for this purpose, he had repeatedly begged and prayed the prisoner to alter his mode of keeping the accounts.  That, notwithstanding, the prisoner had neglected for some time to do so, and did not commence to keep a Miscellaneous cash-book till 1st January 18665, which should have contained all entries of receipts and payments.  That Mr. Winchester had expressly ordered the prisoner not to receive any monies on account of Intestate Estates, and yet, in direct contravention of these orders, the prisoner had received various sums on that account.  It as evident, therefore, that the prisoner could not set up the general confusion of his accounts as a defence to the present charge.

   Again, assuming that the $197 had been received by Mr. Jones, there could be no doubt that he must have known that he had no authority in the matter, and was  doing  wrong in receiving the money.  And that this was the case is proved by the entry in the prisoner's own handwriting, in the small account book produced from the undertaker.  There he has entered a small sum under the heading British subjects deceased Intestate, as paid for the funeral expenses of Hitchcock.  Would he have so paid this money had he never heard of Hitchcock, and had never received any sums on account of his estate?  Surely this payment would have reminded him of the existence of the estate and of receipts on account of it.  Why then were there no entries?

   The again, as to Nicholson's estate - Tls. 1,414.48 is not a sum received every day, nor yet is it so small as to be unintentionally omitted by an accountant, -nor is it likely that any man would by mistake appropriate so large a sum as if it were his own.  This, however, is what the defence would have the Jury believe.

   The sole question for the Jury is - Did Jones know that these monies were not his own, and did he, notwithstanding, wilfully appropriate then to his own use?  If the Jury came to this conclusion, then the intent was perfectly clear.  What was passing through a man's mind could never be discovered otherwise than by his acts.  A man's acts were the revealers of his thoughts or intentions.  And if the Jury were of opinion that Mr. Jones had received these monies, that he had received them by virtue of his employment, that he knew they were not at his private disposal, and that so knowing, he had appropriated them to his own use.  Why then, that it was his intention to defraud the Crown, was the only inference they could come to, and they must find the prisoner guilty.

   It was for them, looking at all the facts adduced in evidence, to say whether the prisoner's intentions could have been other than fraudulent.  If they had reasonable grounds to doubt this, then of course they should acquit him.  But he (Mr. M.) would have them remember that it was perfectly immaterial whether the prisoner, at the rime of conversion, might have intended to refund the money or not.  That could make no difference. The offence was complete, no matter whether the Shanghai recorder or any other speculation in which the prisoner may have been interested, was likely to be successful or the reverse.  The money was not his, and he had no right to apply it for any other purpose than that for which he had received it.

   Another thing which went far to show the intent of the prisoner, was the reluctance he displayed in permitting his accounts to be inspected subsequent to the discovery of the deficiency.  It was evident that he was then in difficulties, and like a drowning man grasped at any straw in the hope of keeping himself above water, and no doubt thought that the same consideration would have been shewn him in this instance by the government as had been shown him in reference to deficits previously discovered.  When these defalcations accidentally came to light, further forbearance was out of the question; and it being clear that these accounts as well as others to which it was not proper for him (Mr. M.) to refer particularly, had been embezzled, the government felt it their duty to the public to prosecute.  In conclusion, he had only to say that he felt satisfied that by the verdict of the jury, justice would be vindicated.

   The CHIEF JUDGE then addressed the Jury as follows:-

   The charge against the prisoner is made under the 68th and 70th sections of the 24 and 25 Vict. Ch. 96, notable under the 70th section, which declares that

"whosoever, being employed in the public service of Her Majesty and intrusted by virtue of such employment with the receipt, custody, and management or controul of any chattel, money or valuable security, shallembezzle any chattel, money or valuable security which shall be intrusted to, be received or taken into possession by him by virtue of his employment, or in any manner fraudulently apply or dispose of the same, or any part thereof to his own use or benefit, or for any purpose except for the public service, shall be deemed to have feloniously stolen the same from Her Majesty."

The same section also states that in the indictment to be preferred against such offender, the property may be laid, in other words, may be stated to be the property of Her Majesty.

   The term used in the section to which I have referred - namely "valuable security," which is also the expression made use of in the 3rd and 6th Counts of the indictment, is declared, by the interpretation clauses of the Act, to include any deed, bond, bill, note, warrant, order, or other security whatever for payment of money, whether of the United Kingdom, or of Great Britain or of Ireland, or of any foreign state.

   Now, in considering this case, I will at once tell you that you have nothing to do with the system pursued at the consulate, whether it was good or bad.  You have nothing to do with whether Mr. Jones was or was not a defaulter on any statement of account, -whether he owned other money, but you are to confine yourselves to these two items of $197 and 1414 Taels, which he is charged as having embezzled under the statute.  It is immaterial whether he kept the public money mixed up with his private money or not, or whether he was allowed or prohibited from doing this, or whether the system he found existing or himself pursued, was bad or the reverse.  Your duty is to satisfy yourselves from the evidence that he received the money, that it was in his custody and under his controul, and that it being so, he converted it to his own use with intent to defraud the Crown.

   You may therefore divest your minds of all that took place before the 2nd of December 1865.  It was in January that he was told to, and in part did begin to keep a Cash Book, that it was then at any rate, if not before, his duty to enter any sums he might receive or pay in that Book.  That he did make a payment on Hitchcock's estate of 8 Taels for funeral expenses, on the 18th January, is certain; at this time therefore, the fact of such an estate being in existence must have been before his mind, he must then at least have known that he had received $197 on account of it, yet it is certain that he neither entered the funeral expenses which he paid, or the money he had received, to the  debit or credit of his accounts in this cash Book.

   So also with regard to the Tls. 1,414.48, the receipt of this money took place on Jan. 28th, 1866, when he w as keeping the Cash Book, yet it does not appear in it.  It is my duty to draw your attention to this portion of the evidence, because these are some of the facts which will assist you in arriving at a conclusion on the question of "intent."

   The order, or cheque for 1414 Taels the prisoner paid in to his account at the Oriental Bank, in the ordinary way of business, as business was then conducted.  So far he acted rightly, he received the money lawfully, he passed it to an account which he held at the Bank, and which, if not e expressly so allowed to be holden at the Bank, at any rate there is no reason to suppose was held against the order of his superiors; and it is only when called upon to account for the money that he received during his term of office, that he omits this sum.  But it is here to be observed that, when taxed with the receipt of this money, and when asked why it was that he did not include it in the account of his liabilities, he does not deny having received it, but simply states that he must have forgotten to include it.

   With reference to the receipt of the money order of Messrs. Barnet & Co., \in Hitchcock's estate, there is equally little doubt of its being handed over to and its being received by the prisoner, and equally beyond doubt is it that he never accounted for it.  It is another, and in this indictment the other, of his omissions.  In answer to this, he urges the improbability of his having, at that time at any rate, any felonious intention with regard to it, since he signed a receipt for it in his own name, which at any moment might be, as at a recent date it actually was, produced against him.  If he converted it to his own use, with intent to defraud the Crown, he unquestionably has been guilty of embezzlement.  His answer is that he has not willfully concealed the two orders.  That he forgot he had received them.  But it is a fact that he paid the funeral expenses of Hitchcock, having Hitchcock's money in his hands, during the month of January when a cash Book was kept, and that he did not account for it nor enter it in that Book.  Now it is difficult to conceive that, having made the payment, he forgot or did not then know that he had such an estate out of which to make it.   It is for you gentlemen to determine the animus with which the conversion to his own use was made, and whether his not accounting for the money so received, was the result of an intention to defraud or simply of non-recollection. My duty is limited to laying down to you the Law, so far as I understand it to apply to the facts and circumstances of the case as elicited from the evidence of the witnesses.

   Now when it is a servant's duty, - and under the 70th Section of the Act, a Clerk or other person in the service of the Crown, is in the position of a servant - to account for and pay over all monies received by him - whether at stated times, or when no particular time is fixed - his not doing so, wilfully, is an embezzlement, although he does not actually deny the receipt of them.

   It is unnecessary that I should draw your attention to the difference which exists between larceny and embezzlement at Common Law and in the Statute Law, because the offence charged against the prisoner is eminently one under the Statute; but it may be as well that I should allude to a striking distinction, which I think will greatly assist you, in your deliberations on the case before you.  At Common Law - if a party obtained possession of the goods, or, as in this case, of the valuable security or order for the payment of monies, lawfully, as for instance upon trust for, or on account of the owner, by which he acquired what, in the eye of the Law, is considered a special property therein, he cannot at Common Law be afterwards held guilty of felony, in convert ting them to his own use, unless, by some new ands distinct act of taking, he severs the particular goods which are clearly his own property, and then with intent to convert them to his own use, foes so; because, by the severance he determines what, in Law, is termed the privity of the bailment and the special property thereby conferred upon him.   To remedy this defect of the Common Law, for it can be called by no other name, the Legislature wisely determined to disregard the fact, of whether originally the servant acquired a legal possession or not, and by statute it declared that, whether or not the original possession was lawful or the reverse, if afterwards the servant converted them to his own use, with intent to appropriate them, he should be considered guilty of stealing.  So also, when the master had no previous possession of the property, distinct from the actual possession of the servant, the conversion of the property by the servant to his own use was not considered at Common Law larceny or stealing, but simply a breach of trust.  This again the legislature altered by statute, and now, whether the servant acquired the property he is accused of converting to his own use, originally, lawfully, or not, or whether the master had or had not the actual possession of the property, distinct from the possession of his servant, the converting it by the servant to his own use is now larceny or embezzlement, for which he is responsible to the criminal law, and not, as before, simply to the civil courts.

   Embezzlement, it is true, involves secrecy and concealment, and therefore when any right or shadow of right to the property is set up, as when for instance the accused admits the appropriation but alleges a right in himself, the Law, humane in its incidents as well as in its practice, refuses to see the criminal offence, and declares the keeping, appropriation or retention, no embezzlement.  But to this, what may not inappropriately be denominated the humanity of our Law, some reasonable limit must be, and is, imposed - thus, in the case of a person whose duty it is to receive money for his employer, and who does receive the money, but omits, in an account which he renders, to mention it as received, this omission is evidence for the jury to show that he his embezzled the amount.  The questions then that in this case you have to ask yourselves, are the following.

Did the prisoner receive the order mentioned in the indictment?

   Did he receive it in consequence and by virtue of his position which he held in the Consulate?

   Did he wilfully and with intent to defraud the Crown subsequently convert it to his own use?

   Now, you can have little or no difficulty in answering the first two questions in the affirmative, his receipt for the order in the one in stance, and his actually passing the order in the other through the Bank for encashment, prove beyond all doubt that he received the orders, that he did cash them and that the money is not forthcoming.

   Then as to his receiving them in the course of, or by virtue of, his employment, there is equally no doubt that, in his capacity of Accountant or Senior Assistant - by his custody of the Consular seal - and by his affixing it to the receipt which in his official capacity he gave to Messrs. Barnet & Co., that not only was the order paid to him in his official capacity, but that by virtue of his official employment, he received it.  You can have therefore no difficulty in answering these two suggested questions in the affirmative.

   Then as to the third question, the answer to which is so eminently within your province that I shall not seek to interfere with your undoubted right to determine it according to your appreciation of the evidence, and according to your oaths.  I have pointed out to you, that whether the prisoner originally received these monies or order for monies lawfully or not, ort whether the Crown or the Consul as representing the Crown, had ever the actual possession or not of them, if you are of opinion that the prisoner converted one or either of them or the monies which were paid in respect of them to his own use and for his own benefit, without a show of right and title to it, such a conversion is embezzlement.  Nevertheless the animus with which the conversion was made, the animus with which the commission was made, when he rendered his accounts, whether both were or were not the result of mistake or carelessness, is for you to decide on, and your decision on these points must be confined to and founded on the evidence that has been adduced at the trial. 

   On the one hand you will find that the prisoner undoubtedly received the money orders, that he received them in his character of a person in the public service, that he paid one into his Bankers, that the other he cashed, gave a receipt for, but never passed in any account; and both he has since either ignorantly or knowingly applied to his own use; and you will also find that when he rendered his accounts to the Consul, he omitted to mention both these amounts as received by him.  These are the facts from which you will decide the question of intent - from which you are called upon to decide whether the conversion, was criminal or the reverse; in other words fraudulently and with the intent to deprive the Crown of the amounts.

   On the other hand you will take into account the statement of the prisoner, giving it the weight to which it is entitled, as opposed to the evidence offered by the Crown, that the conversion and omission were the simple result of mistakes or carelessness, and that he used them believing at the time, that they formed part of his own moneys.  It has been stated by the witnesses for the prosecution that he paid money on three several occasions twice over against himself, this is certainly evidence of carelessness and of error, it is for you to appreciate its bearing on the present case.

   If you are of opinion that the evidence shows, or rather that the only reasonable conclusion you can come to on it, is that he knowingly and wilfully omitted these items in his accounts, and, with intent to defraud the Crown converted the monies to his own use, you will find the prisoner guilty on one or more of the counts of the indictment.

   If on the other hand you are of opinion that both the omission and the conversion were simply the result of carelessness or of neglect, or of mistakes, you will acquit the Prisoner.

   I leave the case in your hands, gentlemen, confident that you will be swayed by no other feeling than an anxious desire to do justice between the Crown and the Prisoner, that you will regard the oaths you have taken to decide the case on the evidence before you, and on that alone.  On the one hand recollecting that the Crown, as the guardian of public property, has a solemn duty to perform, if even it extends to the bringing of its own servants to the Bar of a Criminal Court.  On the other hand not forgetting that the Prisoner, whether as a public servant or as a private individual, is entitled to a calm, fair, and patient investigation of facts, upon your appreciation of which depends the, to him, momentous question of his guilt or innocence in the world's eyes.

    Again I beg you to recollect you are simply called upon to say whether, in the taking of these monies, clearly proved to have been received by him and not accounted for, the Prisoner is or is not, guilty of having knowingly wilfully and fraudulently converted them to his own use.

   The jury retired about 4 p.m. and returned in the course of half an hour.  They stated that they found the prisoner had received the money, and also that he had appropriated it to his own use, but with what intent, the evidence did not show.

   The JUDGE said this last was the main point to be decided; and they had better retire again and say whether they thought the prisoner took the money with intent to defraud the Crown, or by a mistake.

   Eventually they returned again about 5.30, and announced through their Foreman that there was no chance of their agreeing on a verdict, as they were divided on the question of "intent" to defraud.

   The CHIEF JUDGE discharged them, and directed that the prisoner should be kept in custody, until the pleasure of the Crown could be ascertained, as to whether or not he should be re-tried.  Bail would be accepted.

...

The above report has been carefully revised and corrected.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School