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Colonial Cases

R v. Caine [1873]

larceny - embezzlement - fraud

Supreme Court for China

Shanghai, 6 August 1873

Source: Supreme Court of China (Shanghai), Judges' Notebooks, The National Archives (U.K.), FO1092: 339, pp 93-100

Regina v. George Whittingham Caine.

Indictment:

-  Larceny of money entrusted;

-  Larceny of money recd in possession;

-  Embezzlement as a public servant;

-  Fraudulent application of public money.

Plea Not guilty

Jurors sworn: W. Howie; A. J. Little; T.O. Pemberton; C. J. Skiggs; W. Papps.

Mr. Rennie for prosecution

Mr. Robinson for accused

P. T. Hughes

I am her M's Consul at Hankow. I entd in the service on the 1st of April 1872. I took over charge from Mr. Caine. Mr. Caine, consul at Swatow, was then ailing at Hankow. I recd the papers & documents of the Consulate. [Note in margin: The additions in red ink are mine.] Shortly afterwds I recd the Cash Book of the Consulate, also a [????] Ac/t from Mr. Caine. That Bk shows the Cash a/c of the Consulate for the [Qtr?] ending 1st of April 1872.

[A] The entries are nearly all with I think one or two exceptions in the handwriting of Mr. Caine. I find under date the 16th March an item "As per authy 9137.47. According to the practice of the service there ought to be a voucher in authority in the Consulate. I searched for such authority but found none.

[B] This is an Office copy of the Quarterly Ac/t for the quarter ending 31st of March 1872. Mr. Caine's [acccount] as Consul at Hankow. It is in the handwriting of Mr. Caine. It is signed by him. I look at the credit side & find an entry to a similar amount. It is "Advances as per Disp" 9137. 47. L(Pounds) 1941. 14. 3. According to this entry there ought to be a copy of the Dispatch alluded to attached to the ac/t. I have made search - but there is no such Dispatch. This is the way in which [Cr] accounts are made up - Quarterly - They are sent in direct to the Secty of State. [I am well acquainted with Mr. Caine's handwriting,

[C] This Dispatch is in Mr. Caine's Handwriting, from Mr. Caine to the Under Secty of State dated 30th March 1872.

[Note in margin: ought to have been written before taking the money.]

X

[Note in margin: [Secrecy] as to Embezzlement.]

I recd the Cash book & quarterly a/c about the 5th of April 1872 after the departure of Mr. Caine. I know the balance I was to receive from the accounts. I did not know wether it was the right sum or the wrong sum. I know the balance from Mr. Caine's statement to me. I think it possible that I saw the Cash Book. I do not know when it was made up. It was probably taken away. I do not recollect if I saw the Quarterly Ac/t before the 5th of April. I will not swear that I saw the Cash Book in its present state before the 5th of April, simply because I do not know what entries were on preceding page. I have no personal knowledge of the items of the Ac/t except what the cash book & quarterly account furnish. I recd the letter of the 30th of March from Mr. [Mowatt], it had never previously been in my possession. I recd instructions from H. M's Minister at Pekin to [proceed] to the S. Ct. relative to the charge agst Mr. Caine about the end of Octr 1872. In consequence I came to Shanghai & made a deposition before the Law Secty. I made no application to the S. Ct. in reference thereto. I applied for no warrant or summons. I had reason to believe the Prisoner was in the neighbourhood of Shanghai at that time. I gave him no notice of my deposition. I did not consider myself the Prosecutor or as actg for him. I preferred no charge in prosecution until the 21st of July 1873. I then [merely?] gave evidence in the matter before the Court.

There is no date immediately appropriate to the entry in the Cash Book for the sum $ 9137.43. [Margin note: date] In the quarterly Ac/t there is no separate date to the item $ 9137. 47. All the items are [thus] it is under the date of March 31st. It is rendered on this date. It means an advance during the Quarter. It did not strike me as very wonderful that the Cash book was not handed to me until the 5th. He might have been busy. I am 19 mos Junior in the service to the Prisr. The Consul is the Accountant.

Re Xd

I endeavoured to carry out the instructions I had recd from H. M.'s minister in reference to case for Prosecn.

The prosecution

Mr. Rennie states an appeal was made to him by Mr. Robinson to allow the readg of certain correspondence that passed between the Pris. & H. M's Minister. [??????] of Mr. Caine's are not. Not sent from Pekin. Cannot see what bearing they have, but I consented rather reluctantly.

[Margin note: [????]ing Mr. Wade's opinion of the approp.]

Dispatch 24 April 1872 Wade

1st May 1872

3 June 1872 Wade

\ 8 July 1872 Wade

9 Decr 1872 Wade

23 Decr 1872 Wade

2 Octr Wade

4 Novr Wade

25 Novr Caine

28 Novr Caine

Mr. R. addresses the Jury. Correspondence no bearing.

Mr. Robinson - No case to go to a Jury - [????] 51 - & 180 - [???]

Tell Jury that as men of business [consider] date.

Objn - 3rd count, as to embezzlement [?????] with fraudulent appropriation.

Intention to return it - intention to borrow not to steal it.

only evidence his own confession

no doubt he intended to return

Russell 2 - 166 - 158

no matter what Wade thought - whether it was criminal or not, as he states he had no power to dismiss only suspend.

Deft left in entire ignorance

[sworn] statement about pension.

The Jury first found that the Prisoner took the money with't fraudulent intention. I asked them what they meant, did they mean as regards the 4th count to say that he did not fraudulently apply or dispose of the sum for his own use?

Jury. We say that he took it, but intended to return it.

Judge. That is a verdict of guilty because his intention of returning it has nothing to do with it.

Jury. Will your Lordship tell us what "fraudulent application" means.

Judge reads over previous note of summing up.

Fraudulent appropriation or application is the wilfully & knowingly taking the property of another without his consent - without any colour of right to it & holding or using it as one's own.

-  The question is was the Prisoner in the employ of the Queen - was he by virtue of such employment intrusted with money - did he fraudulently apply or dispose of the same to his own use.

Jury. We find that he took the money with the intention to return it - not fraudulently - & that he applied it to his own use.

Judge. But you must find not whether the Prisoner intended to return it - but whether he fraudulently applied it, as in the 4th Ct of Indictmt laid - to his own use. That is the offence according to the Act. "[Judge reads the Sections of the Act.]" Whether he intended to return it is beside the question.

Jury. There is no chance of our agreeing.

Judge. Then you must retire.

Jury retired, & subsequently sent in for the explanation given by the Judge of what was the meaning of fraudulent appropriation.

Judge sent in a copy of what he read to them in Court [see supra] See Ms.

The Jury returned with a verdict of

Guilty

With recommendation to mercy.

2 years imprisonment.

Friday, 8th August 1873

 

Regina v. George Whittingham Caine

The prisoner moves for leave to appeal to Her Majesty's Council against the ruling of the Chief Judge upon the trial of the Indictment against him on the 6th day of August 1873 (see ante p. 93) upon grounds stated (see Motion paper No. 117)

Mr. Robinson for prisoner

Mr. Rennie for prosecution

Mr. Robinson asks to have added to the judge's notes of the discussion that took place after the jury returned to Court with their first verdict, the short-hand report of it as it appears in the "N. C. D. News." [North China Daily News.]

I consent to said report being sent as such, distinct from my notes, but supplementary to them.

Mr. Robinson then argues in support of his motion, on the grounds set forth in the motion.

1st. [first sentence deleted: The date of the entry in the Cash Book is not the 16th March - it may have been.]

There is nothing to show that the money was taken on the 16th , the day laid in the indictment. It might have been on the 17th or any other day - for all that appears in the Cash-book. In the a/c current the date is the 31`st March. And the [letter] is dated 30th March.

2nd. The 1st verdict was one of acquittal because the jury negatived fraud; there must be intent to [defraud] the owner.

R. v. [Moah?] (25 L. J. [no. c.] 66 an authority for the prisoner.

3rd. Offence is either larceny or embezzlement. No distinction but one or the other of these & fraudulent appropn.

4th. The statement in evidence, X not of the alleged [precedent]X but of the belief of the prisoner & as such it shd be taken into [consid?].

Mr. Rennie.

1st point - There was evidence - date immaterial. (14 & 15 Vic. c. 100, s.24)

2nd point. R. v.-------------------- 32 L. J. (m.c.) 24 - the judge may direct the jury to reconsider their verdict. The last verdict is the one to be recorded.

3rd point. Fraud is implied - the intent to be inferred. R. v. [Moah?] against the prisoner. Pollock [C B] [???????] fraudt off & embezzt so far as arguments go.

4th point. No evidence of [????????].

Mr. Robinson in reply.

Leave refused on 1st point. There was evidence given. On the 2nd point [??]. Also on the 3rd & 4th point.

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