the prisoner was a trustee of a savings bank, and the money coming into his hands had to he paid to the Commissioners for the reduction of the national debt. It was there held that this was not public money, but that the prisoner was simply a trustee, not for any public purpose but for other persons. A savings bank was a public institution in the ordinary sense of the word; any one and every one was invited to deposit moneys in it, it was regulated by Act of Parliament, and the moneys when received were to be paid into the! hands of public officers. He submitted that ease was much stronger than that of an official assignee in a partionlar lankruptcy, the moneys in which subserved no public purpose, but were hold only for the creditors of the estate. With reference, then, to the first and second counts he submitted the prisoner, as official assignec, was not in any seuse a public officer, nor as such in the employment of Her Majesty; that the only moneys he was charged with having received and ruisappropriated were moneys which osme to bim and were vested in him as official assignee, and that the verdict on the first count must therefore be set aside, aud also on the second count as the prisoner was not a trustee of money for any public purpose. With reference to the points reserved on the third, fourth, and fifth counts as to the ovidence of misappropriation, he would call their lordships' attention to section 65, in which the words used were "shall, with intent to defraud, convert or appropriate the same or any part thereof to or for his own use or bouefit, or the use or benefit of any person other than such person as aforesaid, or for aug purpose other than such public or charitable purpose as aforesaid, or otherwise dispose of or destroy such property." The prisoner was charged on all the counts with having wilfully and u lawfully converted the said property to aud for his own use and bonefit. There was no allegation that he disposed of the money or destroyed it in any other way, or appropriated it for the use of any other person. The allegation to be proved was that he appropriated it to his own use and benefit. He submitted the crown was bound to prove, ou an indictment so framed, that the money which Mr. Huffam was proved to have received 23 official assignee was ap- propriated by him in fact to his own use and benefit. If the prosecution had left it open to possibility that that money might have been disposed of or got rid of in any other way than the particular way charged, the case must fail. onuts might have been added which would have met each one of those particular methods of dis. posing of this money, but the Crown had con- lined itself to this one method, and, he submitted, was bound to prove it to the exclusion of all the other different methods in which the money might have been made away with. He ad- mitted, for the purpose of arguing the point, that the prisoner as a trustee was clearly proved to have received large sums of money for the creditors in Lyall's and other estates, but he submitted there had been no proof that he appropriated that money to his own use; it was perfectly possible on the whole of the evidence that he might have appropriated it to the use of some other person, or that he might have simply made away with it, destroyed it, burnt the bundles of bauk-notes, or that he might have simply lost it, through the grossest negligence let thom say. In the same way as when two mon were charged with murder and it was clear one of them committed the act, but there Wwx no evidence to show which, both were! discharged; so here the Crown had led the jury to a point where several roads met and there was nothing to direct them which to take. There was not one tittle of ovidence to show what had become of this money. The proof that he had received certain sums of money was no proof that he had appropriated them to his own use, and while it was possible he might have disposed of the money in any other way, it was impossible for the jury to draw one conclusion more than another. The transactions had extended over so many years and the prisoner's financial busi- ness as official assignee had been so mixed up with his financial business in other capacities that it was quite conceivable the money had been lost through not having a banking account or no proper method of keeping it.
The Attorney-General said this point was cer- tainly put to the jury by Mr. Francis as strongly as it could be, and be (the learned Attorney) re- ferred to it in his reply.
Mr. Francis said the money might have been lost, even with Mr. Huffam's knowledge. He might have been aware for years past that this
money was lost or deficient, but his concealment of the fact was not necessarily proof of his ap. propriation of it. He submitted the evidence was not sufficient where there was an affirmative issue that the prisoner appropriated the money. The only evidence was that he had not paid over. There was no evidence of non-accounting: all the evidence was the other way. The prisoner's whole conduct, he submitted, showed there was no concealment, nothing which was ordin- arily found in the conduct of persons who embezzlemoney, who generally either make wrong entries or take credit for money which they have never paid, or when questioned state what is un- true. In this case there was no concealment and no evidence of a fraudulent mind. Conceal- nout was of the very essence of embezzlement.
The Acting Chiof Justice called Mr. Francis's attention to the case of the Queen against Wil- liams, Carrington and Payne, which was the case. of a bank clerk who was deficient in his accounts. Mr. Francis said that in that case and others the circumstances showed an actual taking and holding and carrying away of the money at the time. Here there was such a long interval be- tween the receipt of the money and any abscond- ing and going away that it was perfectly possible and feasible that the money might have been lost in some other way and not appropriated to bis own use and benefit. In this case there were no circumstances which went to show an actual carrying off of the money by the prisoner.
Mr. Justice Russell said there was the evidence of the prisoner's own admission on a certain day in July that he had the money, and then absconding.
Mr. Francis said it was simply evidence of his having received the money, not evidence of hav ing it in his possession. He cited the cases of the Queen against Lambert and the Queon against Grove, and said that in those cases the receipt was immediately before the absconding and to other description of appropriation than appro. | priation to their own use was available to the prisoners at the time. Here it was just the: reverse; all the circumstances of the caso left it possible that the money might have been lost simply by gross negligence.
Mr. Justice Russell said there was evidence and the jury chose to make an inference which was open to them on the evidence, though not necessarily the only possible inference.
Mr. Francis said the jury were tied to it by the indictment. He went on to cite cases show. ing the proof required in cases of embezzlement aud said that hore thore was no absconding. The prisoner's return from England when he had loave in 1877 and the letters put in in refer- ence to his leaving for Macao showed that he had no intention of absconding, and they must consider his state of mind when he left the colony.
The Acting Chief Justice--But be failed to obey a summons of the Bankruptcy Court.
Mr. Franeis-That is hardly evidence of ab- sconding.
The Acting Chief-Justice-It is a strong presumption.
Mr. Francis submitted that the order or sum- mens referred to wus irregular.
The Acting Chief-Justice overruled this ob- jection,
Mr. Francis said that even then it was not necessarily evidence of absconding. That the prisoner should have taken fright at what he heard was going on and remained away was not evidence that he intended to abscond when bo left on Saturday. The evidence was strong that he went under medical advice, adopting the usual course taken when an officer of the court goes: away to Macao.
The Acting Chiof Justico said the prisoner stated he was going for a for days and the rule was very strict that it should only be from Satur day to Monday, and the note came after he had left.
Mr. Francis admitted it was very strong point that the prisoner remained after the Monday and did not obey his lordship's order, but he submitted it was not necessarily evidence that he intended to abscond when he left here on the Satur- day, and when it was taken into 400. sideration that he had the most favourable op- portunity of removing himself from justice when he went away in May, 1877, on leave, and a large deficiency must have existed at that time, nud that he did not then abscond, but returned and resumed his duties here, he (the learned counsel) thought the one might fairly be set against the other, and that the whole of the transactions in this unfortunate affair showed that there had been
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