further, and we therefore pressed him. Some trifling excuse was made from day to day, chiefly that he had not time to make up the accounts, } On the Tuesday, 13th August, on which day be bad pronised faithfully the cheques should be paid, we found he was not at the office. I heard he was ill, and on the 15th I wrote to him asking him if he could write out the cheques, and I received an answer from Mrs. Huffam saying Mr. Huffam was unable to attend to business matters that day bat would do so in the morning. On the 16th I received a fur. ther letter from Mrs. Huffam saying Mr. Huffam was too unwell to attend to business. but would attend to the matter I had written abont on the previous day as soon as possible. On the 17th I heard he had gone to Macao. No dividend was over paid.
By Mr. Francis--I have no recollection of the form in which this $5,000 was paid. I was under! the impression it was a cheque, but on inquiry at the bank and looking at our paying-in book I found it was notes. I did not soe Mr. Huffam again on the 6th after I saw him downstairs. Mr. Huffam did not conut me out fifty $100 notes ou his table. It could not have hap pened without my recollecting it. In the copy of my evidence supplied to you it is stated that my first intimation of his going away was a paragraph in the Daily Press on the morning be left. I was under the impression that was the first intimation I had of it.
Fapers produced in which Mr. Huifam's de- parture was only noticed after Mr. Huffam left.
Cross-examination continued-I am sure ny recollection has not failed me as to the whole of what happened. I am sure the prisoner did not count out the money to me himself, and the chit I received from Mr. Sangster was not a request to send acknowledgiaent to Mr. Huffan, care of Mrs. Huffam; it was the money. Mr. Huffam came back in January and the money was not paid back until July. We did not think it ad- visable to pay it back until he was making up the accounts. It was paid back in July at his ro- quest because I had the utmost confidence in him. I have had almost weekly money transactions with him for the last fifteen years, and have al- ways had the utmost coufidence in him. Until this affair of Lyall, Still and Co.'s there was nover anything wrong. He was always most correct in his acconuts. Hundreds of thousands of dollars must have passed through his hands during those fifteen years. Mr. Huffam cer- taiuly had a great deal of work on his hands, but the delay in Lyall. Still and Co. appeared to me to be very unnecessary.
By the Attorney-General-The $3,000 was not about the amount of dividend my clients would have to receive, the amount would be over $11,000.
By his Lordship--I have inquired at all the banks in the Colony, and have not found that Mr. Huffe had any private banking account.
Mr. Arnold, recalled by the Court, said the amount which had passed through Mr. Huffam's bands in the bankruptcies he had beau engaged in exclusive of Lyall, Still & Co.'s was $41,644.80.
This closed the case for the prosecution. Mr. Francis-I would like to submit to your Lordship before going into the defence, thut in point of law there is no case to go to the jury on the first count. The only moneys re- ferred to in the course of the proceedings have boon moneys received by him as Official Assignes in bankruptcy. My submission is that as Official Assignee be is not an officer of the Government, whatever he may be in other capacities, and that therefore there is no evidence to go to the jury on the first count, as there is no proof he was a Government oficer. He was not in the public service of Her Majesty. He was not a servant in any sense; he was the absolute owner in point of law of the money that cute into his hands and was trustee for other persons. 1 presume your Lordship will not take any argument on the point now, but reserve it.
His Lordship-The learned Attorney-General seems to attach some importance to the subject, therefore I will reserve the point.
The Attorney-General-I think I may men. tion that is the keynote to the soction, that I inust show he is in the public service of Her Majesty.
His LordshipBnt about the money.
The Attorney-General---Then if he was in the public service the soution brings all the rest in, and it would be the money of Her Majesty in exactly the same way as if a Police Constable received certain articles that were to be handed over they would be the property of Her Majesty. His Lordship-Well, we will have it all dis-
cussed at another time. I reserve the point.
Mr. Francis-With reference to the second count. I submit there is no proof of these being i public monies, in fact all the proof is the other way.
His Lordship-That also I will reserve.
Mr. Francis-With reference to the third, fourth, and fifth counts I call your Lordship's attention to the wording of the section and also to the fact, of which your Lordship will take judicial notice, that it is only within quite recent years that misappropriation of moneys by trustees has been made a criminal offence; therefore this section is entirely a new one and must be taken as it stands and as it is worded, and I call your Lordship'sattention to these words-- Whosoever being a trustee of any property for the use ori benefit, either wholly or partially, of some other person, or for any public on charitable purpose, sball, with intent to defraud, convert, or appro. priate the same or any rart thereof to or for his own use or benefit." These words have been co- pied into the information, and I submit it must be shown by substantive proof in the case that the moneys with reference to which the charge is made have hoon appropriated by him to his
own
use aud benefit, that there must ba some distinct evidence of his having made use of some portion of these moneys for his own use and benefit-couverted or appropriated the same on any part of it to his own use or benefit-that is the offence with which he is charged. It is not sufficient to show merely he has received the money and has not paid it over. He has accounted for it, that is, he has charged himself in the books with the full amounts received. There is no concealment about the entries or transactions or his books. He has simply not paid it over. and, if any analogy is to be derived from the docided cases in embezzlement, the more fact of not accounting is not sufficient evidence to sup- port a charge of embezzloment.
His Lordship-There are cases the other way. : Mr. Francis Tharo, there are additional cir- cumstances.,
His Lordship--Well, I had better reserve this point also.
Mr. Francis-There is another point to which I would also call your Lordship's attention with reference to the three last counts, to the proviso at the end of the section. “Provided, that no proceeding or prosecution for any offence in- cluded in this section shall be commenced with- out the sanction of Her Majesty's Attorney. General."
His Lordship-I presume it had the sauction of the Attorney-Genorul.
Mr. Fraucis-It has not been shown. The Attorney-General-I prossented.
Mr. Francis-Captain Deane made himself the prosecutor. I also call your Lordship's atten- tion to the whole scope of those sections; the intent is that, the prosecution shall only be on the complaint of the aggrieved parties, and we have it in direct evidence that none of the aggrieved parties, none of the creditors, have initiated or taken these proceedings. I submit first, that there can be no prosecution by the Attorney- Goneral, but that the prosecution must be ini- tiated by the person aggrieved: secondly, that any prosecution commenced, and the commence mont is the proceedings in the Police Court, must have at the time it is commenced the sanc- tion of the Attorney-General, and that that ought to be affirmatively shown in the case. Under the Criminal Procedure Act the foroe and validity given to the Attorney-General's in- formation is ouly that of an indictment filed or found by a grand jury in England, and my sub. mission is that in England a presentment by a grand jury in this case would be invalid and liable to be quashed for the irregularity of the first proceedings.
His Lordship-I will reserve that poiut. Mr. Francis-For the purposes of this case I prosume your Lordship will hold there is evi- dence to go to the jury.
His Lordship-Yes.
Mr. Francis said he called no witnesses. He presumed the Attorney-General would now sumL
up.
The Attorney-Goneral said he had the right of reply, and it was not usual to sum up when there were no witnesses called on the other side. Mr. Francis said it was always done, and be did not think it was fair to the prisoner that be (the learned counsel) should not be hear the At- torney-General's summing up before he was called on to reply.
The Attorney-General said it was not the practice, and that Mr. Francis could not find a case in which it was done.
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