Mr, Wing, addressing the Court, said that the two main grounds of ithe appeal were that the charge under which appellant was tried at Peking was "bad for duplicity," and that appellant onvieted of an Jatvempt to commit an offence other than the offence of which he was actually charged, Counsel referred the Court to the charge as framed, pointing out that not only were two Jssparate offences charged under one count, but that compound charge had been made of a felony and a misdemeanour, and there had been '30 muddled that it was hardly po sible to say what part of the cha }was applicable to each of the dif-{ferent sections under which the two offences came, It was impossible to say under which part of the charge as framed the conviction was arrived at, Counsel submitted that what, had) happened' some of the elements of lof an offence entirely new to the law, and one which, in fact, did not exist in the law. 'The' charge was, therefore, by his. submission, inherently bad' and a conviction on it could not be upheld, Hiatus in the Evidence This brought them to another: point. Let them suppose that defendant was convicted under Section 20 of the Larceny Act, This act dealt with offences against a public lcempany by its directors, members lor officers. In this case no evidence had ever been brought to show that Moutrie & Ca., La. were a public company within the meaning of the /Act, or that Moutrie & Ca,, Ld, were fa company at all. In England, as the Court was aware, there were specified penalties for firms who used the affix Limited, or any abbreviation of it, when there Ino legal sanction for so doi however, except nothing to stop anybody from name, and he believed it was common knowledge that many Chinese Jcompanies actually did so. In this Jease no evidence had been called to show that Messrs, Moutrie were a public company, an English company, mor even that were a Jcompany ut all. In those _cir-Jcamstanees, and with that absence of evidence, it was impossible that. the Crown should rely fon Section 20 of the Larceny Act for a conviction, and the greater part of the charge was: formed under that section. If, on.the Jother hand, it was to be submitted }that the conviction should be upheld the ground that this case., Wwas Jone of larceny by a clerk or servant the Crown was now in this difficulty, that while under Section 17 of the Act it was necessary to prove that defendant was a clerk. or servant, it was quite possible, og the charge iwas formed, that ' the Consular [Court in coming to its decision was Jconsidering appellant to be one of the other things, namely, a member lor officer, which was very different [from a clerk or servant, The subsection of the Act dealing with mem-[bers or officers was meant to apply to an altogether different and superior class of persons, such as fa director, an auditor or even shareholder in a public company, There were, continued coin: certain minor points which were [very small importance, and dealt with irregularities, "For instance, the accused, after the verdict was announced, was forbidden to give evidence on oath concerning his character and record. This was irregular, because it was recognized by the Courts that a defendant prisoner was at all times cone sided a valid witness until sen" renee had been passed, Another point was that no reason had been Jadduced as to why prisoner had been charged before the Assessor The Crown's Reply Ar, Mossop, addressing the Court lon behalf of the Crown, said which Jover way one read the charge, the Jeffence was m misdemeanour," and fan attempt. was that under no statutory enactment whatever was a court obliged to take the evidence of an accused after verdict had been given. If the Court Jaid allow accused to make a state ment, there was no statutory enactment to say that that statement should be made on oath, With regard to the point that no evidence had been adduced to show that Moutrie's were a public com pany, he would point out that in the contract drawn up between appellant Jand the company the company were referred to as Messrs, Moutrie Ca., Ld, and no question had ever been raised on that point, neither was it raised during the hearing in ithe Consular curt, However, all these points were of very minor im= portance, and in none was it shows that appellant had suffered Jcarringe of justice. All were tache They then came to the Important points, He had looked through the wording of the charge as framed, and compared it with the wording Jof the form of charge for eases such, as this as laid down in Archbold. The only differences were that th word "servant" had been added, th word "firm" had been inserted instead of the word company and the word steal had been inserted, after fraudulently, He submitted to the Court that the probable reason the words "servi and firm' had been put in was that the person who wrote out the charge had before him Section 44 of the Larceny. Act, and when they considered that section it was difficult to see the writer went far wrong. This section laid down that if a person were tried on an indictment for an, offence under Section 17 of the Act and it was proved the person stole the property, the jury could find him guilty of' stealing, and if, again, the jury did not find him guilty of actually stealing, they might find him guilty of "embezzlement or fraudulent. disposition, and an ace cased could be punished" accordingly.
Text read from the printed page and cleaned; old type leaves the occasional error.