January 12, 1901.]
did not propose to call any witnesses, he would proceed to sum up.z «l-
MrSlade I don't wish to call any witnesses. Mr. Pollock, in summing up, said it would be better, perhaps, if he went into one or two points of law by way of preliminary, in order to show the legal aspect of the case as it pre- sented itself to the prosecution.His Worship would have noted, no doubt, in the first and third counts contained in the charge
Mr. Slade at this point interrupted to ask that. Mr. Wilson and Mr. Potts be allowed to return to their business, which request his Wor- ship granted.stoclaves fogotáve
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CHINA OVERLAND TRADE REPORT, signature on the instrument of transfer he would come to the conclusion that they were obviously written by a different hand. Further, he thought he could show most plainly that ohn Harper could not have signed that instru- ment of transfer, because of the provisions of the Stamp Ordinance in this colony. Section 4 of Ordinance 26 of 1895 substituted a new section for section 10 of the Stamp Ordinance previously in existence. He would draw his Worship's special attention to the fact that al though under that section certain documents might be stamped after execution where the collector of stamp duty was satisfied that "tho Mr. Pollock, continuing, said-In the first omission or neglect to stamp or to stamp suff. place the defendant was charged with making a ciently did not arise from any intention to evade falss entry: Now, it was perfectly clear from the payment of stamp duty or otherwise to defraud," evidence that the defendant with his own land it was most expressly provided that, amongst did not make that entry. The entry was made, other things, transfers of shares should not be as he would submit upon the evidence, from the stamped until the numbers of the shares and procurement by the defendant, Mr. Carmichael, the consideration money were entered, nor of Mr. Potts, the secretary of the company, he might they if executed within the colony be being clearly an innocent agent in the matter; stamped after execution. Therefore his Wor- and in any point concerning the procurement ship saw that that brought matters down of an innocent agent for any unlawful purpose, to a very fine point. They knew that there the person who so procured was considered in was an instrument of transfer bearing date point of law as a principal. The general prin- October 16th, 1897. Therefore it came to ciple was laid down in the fourth edition of this, that some time on the 16th October, Steven's Digest of Criminal Law. It would be 1897, that transfer of shares must have been perhaps advisable, however, continued Mr. Pol-executed. He had already submitted to his lock, to quote one or two cases, and this he pro- ceeded to do. As to the charge of forgery, the duty devolving upon his Worship was to decide whether there was not sufficient evidence to go to a jury upon which they might convict the defendant of the crime, with which he stood charged. It was not for the magistrate to ask himself whether he would or would not, as a jury convict, supposing he were in the position of a jary. The magistrate had simply to ask himself the question whether or not there was a prima facie case-some evidence by which the jury might find that a crime had actually been committed.
Worship that whether the defendant signed the transfer or not it was signed by someone who was not John Harper, and he thought his Worship would see that that must be so. His Worship would remember that in answer to his learned friend Mr. Archibald Harper, the brother of John Harper, told them that în 1895 his brother, John Harper, and the defen- dant were great friends. People could not be great friends without being able to identify one another when they met, and he submit ted that it was abundantly clear that Mr. Carmichael must have known, whether he or someone else executed the transfer in With regard to the fifth count his Worship the name of John Harper, that it was not would no doubt have noted that under that John Harper who executed that transfer. Fur- count a conviction might be brought against ther, his Worship would see that he himself the defendant by a jury upon various sets of purported by that transfer to have witnessed fact. A jury might look at the case from three te signature. Therefore, he would see that points of view and yet might convict the defen- the transfer was made out by somebody. An- dant under that count charging the defendant other important point for his Worship to bear with forgery. First a jury might ask-did the in mind in this connection was that the defen- defendant forge that document with his own dant was present, as appeared from Mr. Potts's hand; secondly, they might ak themselves evidence and from the minute book, on the 27th whether the defendant, supposing they thought April. 1896, at a board meeting of directors of there was not sufficient evidence of the de Carmichael and Company when it was decided fendant having forged the document with to issue further scrip in the name of John his own hand, got some other person to forge Harper in the place of the scrip lost in the document for him; or again it would be the Catterthun. Therefore a jury. would be open to the jury to find that the defendant was bound to find that the defendant himself accessory to the forging of the document; be signed that "John Harper" or that somebody cause his Worship would know that under the else signed it, and that he knew that the some provisions of Ordinance 5 of 1865 section 1, anybody else who signed it was not John Harper. accessory before the fact of a forgery might be tried and convicted and punished in all respects as though he were the principal of the forgery. Of course his Worship would have gathered that their contention in this case was that Mr. Carmichael, the defendant in this case, had fallen necessarily under one or other of these three aspects. He would submit to his Wor- ship that it was absolutely impossible to sup- poss, from the facts which had been before the Court, that Mr. Carmichael did not either him- self with his own hand write the words "John Harper" on the instrument of transfer, or else if he did not write those words with his own hand that he was not perfectly well aware that whoever write those words was committing a forgery was signing the name of a man already dead. He would ask his Worship to study care fully the writing on the instrument of transfer, and he thought his Worship would see that it was written in a peculiar way. It looked rather a sort of cramped hand. W
His Worship His brother said it looked like his brother's,
Mr. Pollock, continuing, said that when a man first saw writing of that sort he could not of a sudden jump to the conclusion that it was a forgery. He would naturally at once think that his brother had written it. But his Wor- ship would remember in connection with that point, that when the ship's articles were shown bo him the witness was tze Chinese said, nine-tenths sm that those articles were signed cy his brother, and if his Worship would ompare the signature on the articles; with the
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The defendant must have known at that time that these shares were being wrongfully and im- properly transferred to his own name. It had not been suggested in the course of the cross-examination that the defendant gave any value for these shares. It had not been sug- gested that he had any claim upon these shares. It had not been suggested that he had any right to have these shares transferred to his name, and yet he was a party to this instru- ment of transfer of 16th October, 1897, by which these shares were transferred to his name. Touching the question as to whether there was any intent to defraud, he submitted that this was a proper case to send before a jury for them to say whether, under all the circumstances, there was an intent to defraud. Mr. Pollock proceeded to quote several cases in support of his contentions, and in conclusion said that it ought to be laid before a jury for them to say as commercial men and men of business whether there was intent to defraud on the part of the defendant or not.
Mr. Slade, in his address for the defence, said they had heard a great many reasons advanced by Mr. Pollock in his most strenuous endeavour to persuade his Worship to send Mr. Carmichael for trial before a jury and thus gratify the poisonous spite of Hurley. It was perfectly obvious how this prosecution had originated and how it had been carried out-it was simply owing to the spite of Hurley Hurley swore the information, but he had not the courage to go into the witness-box, and he had Mr. Carmichael arrested on the very day when the
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meeting was to have been held at which – Mr. Hurley did not want Mr. Carmichael fo present. That was why and how this prose started, and one could well see why Mr. Hurley was so anxious that his. Worship should com mit the case for trial, because, he know per- fectly well the exceedingly uncomfortably con- sequences which he would have to suffor if the case were not sent for trial. There was an Ordinance-14 of 1845-dealing with malicious prosecutions, the offender being liable to impri- sonment. The only solitary fact around which Mr. Pollock's eloquence had turned was that in 1897, on the date of the stamp of tas trang- fer deed in question, John Harper was doad. As a matter of fact the death of John Harperi had not been pro
proved, but assuming for one moment that his Worship was satisfied that John Harper was dead, from that fact grow the whole of Mr. Pollock's eloquence. Pollock in his apparent anxiety to secure this man's commitment appeared entirely to have forgotten the beneficial presumption of English law which ran in favour of every prisoner that he should not be presumed to be guilty of anything until it had been proved against him, and Mr. Pollock had utterly failed to prove that John Harper did not himself sign that transfer deed before he died in the presence of Carmichael out of the colony. That was a perfectly simple explanation of how that transfer, deed came into existence. When the script was lost with the Catterthun the easiest way of letting John Harper's representative have the benefit of the shares was to transfer them into his own name and then transfer them out again when they were wanted.
Mr. Pollock-The Stamp Ordinance.
Mr.
Mr. Blade, continuing, said Mr. Pollock had forgotten that a document was often brought into the colony and was stamped after execu- tion. One had heard of many documents being presented at the Stamp Office as having just been brought into the colony, whereas they might have been in the colony for years, and a stamp was put on as a matter of course. The brother came there and said,
Yes, I think that is John Harper's signature." So far as any evidence went, that was John Harper's signature. There was another way how this thing might have occurred that Mr. Carmichael had the authority of John Harper to transfer the shares to his own name. They had heard from Mr. Archibald Harper how after the death of his brother he assumed the duties of his executor. Was it not perfectly possible and consistent with his evidence that he autho rised Carmichael to transfer these shares into his name? Archibald Harper simply said he knew nothing about the transfer. That was the only question he was asked. His learned friend interjected, why did not he ask him? It was through that in all probability he had been got at by Hurley. He thought it pro- bable that Hurley had threatened him—hal made him afraid to speak the truth. It was not for him to ask the question, but for his learned friend, if he wanted to prove Car- michael's guilt. The only person who could really explain these matters was Mr. Car- michael himself, and his month was shut-he could not say what really took place. Therein came the devilish ingenuity of Hurley, Hurley knew there was only one man who could speak, and he accordingly made this charge against him. If his Worship would look at the signature to the transfer and compare it with the writing of Archibald Harper, he thought he would be struck with the very marked resemblance. He had no right to say they were identical, but thoes two signatures might very well havɔ been. written by the same hand. In dealing with the three points raised by Mr. Pollock, Mr. Blade contended that there was not tittle of evidence to show that Carmichael signed the transfer in John Harper's name or that he got it signed by someone else, and added that the more writing name was not in itself forgery. Forgery false writing with intent to defraud. The to defraud was the essential part of the It was a thing which must be proved up hilt, or else there was no crime of forgery devolved upon the prosecution to prove inten defraud: How did they attempt to They attempted to satisfy it in the calling Ritchie, who swore that these shares in December, 1898, and that