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EDMUND GOTTFRIED APPEA
V.
THE KING
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
26TH DAY OF JANUARY, 1951
2PLR/1951/12 (WACA)
OTHER CITATION(S)
2PLR/1951/12 (WACA)
(1951) XIII WACA PP. 143-148
LEX (1951) – XIII WACA 143-148
BEFORE THEIR LORDSHIPS:
BLACKALL, P.
LEWEY, J.A.
COUSSEY, J.
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BETWEEN:
EDMUND GOTTFRIED APPEA – Appellant
AND
THE KING – Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court, W.A.C.A. (CR.APP.76/50)
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REPRESENTATION
Opoku-Acheampong — for the Appellant
G. C. V. Young, Crown Counsel — for the Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Power of Appellate Court to examine disputed document in forgery case – Relevant considerations – Appropriation of specific sum negatives general deficiency – Nature of control over factor may establish he is a clerk or servant
CRIMINAL LAW AND PROCEDURE:- Falsification of accounts – Omission to make entity – Effect of acquittal on certain counts and conviction on others
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CASE SUMMARY
The appellant was convicted on one count of forgery, on two counts of stealing, and on one count of falsification of accounts. He was acquitted on other counts of falsification and stealing.
Counsel for the appellant argued:-
(1) that the charge of forgery was not proved because there was no evidence to prove that the appellant had written any part of the forged document;
(2) that the first count of theft only disclosed a general deficiency;
(3) that it was not proved that the appellant was a clerk or servant, or that he had omitted to make an entry in the books. The appellant was a factor; the omission was the fault and responsibility of a book-keeper to whom the books had been given in charge;
(4) that appellant having been acquitted on two counts of stealing he could not be convicted on two other counts of offences of a similar nature.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
1. The Court of Appeal can itself examine documents in cases of disputed handwriting and form its own conclusions.
2. The appellant had to account for the balance of a specific sum advanced to a customer and he cannot, therefore, be heard to say there was only a general deficiency.
3. The appellant received a salary for whole-time employment, and was bound to obey the instructions of the society for which he worked which exercised such control over him as to establish that he was a clerk or servant.
4. The appellant had as much to do with the keeping of the cash book at the material time as the book-keeper engaged to assist him, and that he intentionally omitted to make an entry, or to request the book keeper to make an entry, with intent to defraud.
5. A verdict on one count is entirely independent of a verdict on another count.
6. Where two counts are tried together the position is the same as if two juries were trying two indictments. Each count is a separate indictment.
All the convictions were upheld.
Cases referred to:
(1) Rex v. Thomas Richard, 13 C. A. R. 140 at 143.
(2) Rex v. Thomas Coles, 5 C. A. R. 36.
(3) Rex v. Butt, 15 Cox, 564.
(4) Rex v. Oliphant, 1905, 2 K.B. 67.
(5) Rex v. Bowers, 10 Cox, 250.
(6) Rex v. Negus, 12 Cox, 492.
(7) Rex v. Bailey, 12 Cox, 56.
(8) Rex v. Hall, 13 Cox, 49.
(9) Rex v. Walker, 27 L. J. Mag, Cases 207.
(10) Rex v. Dougan, 1 K. Farlows Reps., 53.
(11) Rex v. Latham & Others, 33 L. J., 1804, M.C., 197.
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MAIN JUDGMENT
The following Judgement was delivered:
COUSSEY, J.
In this case the appellant was tried at the Accra October Criminal Assizes by a Judge sitting with assessors on counts of forgery, falsification of accounts and stealing. In the opinion of all the assessor, he was not guilty on any of the four counts put to them by the Judge, principally on the ground that the key of a safe had been taken away from the appellant in February, 1950. In differing from the assessors, and convicting the appellant, the learned Judge observed that it was necessary to deal with the evidence before the Court. The appellant was convicted on four counts of the Information, namely:-
Count 1: Forgery: Contrary to section 300 of the Criminal Code.
Count 3: Stealing: Contrary to section 271 (1) of the Criminal Code.
Count 10: Falsification of Accounts: Contrary to section 278 of the Criminal Code.
Count 11: Stealing: Contrary to section 271 (1) of the Criminal Code.
There were no other counts of falsification of accounts and stealing upon which the appellant was not convicted.
As to counts 1 and 3, the facts, briefly, upon which the prosecution relied are as follows:-
The appellant had been employed during the three or four years preceding the prosecution as the Produce Factor of the English and Scottish Co-operative Wholesale Society at Tafo under the supervision of a Mr. Hardman, the District Manager at Koforidua. The appellant received large sums of money from the Company and was responsible for giving advances to suppliers against cocoa to be delivered and for buying cocoa direct from farmers. It was his duty to take receipts for moneys paid out by him.
In 1949 the system of book-keeping was changed so that instead of keeping a cash book as hitherto, in which were recorded in lump sums, the moneys he from time to time advanced, a cash book was kept in which every advance was to appear separately, and there was a ledger showing the account of each supplier or customer, and the appellant was required to submit monthly cash statements giving particulars of cash in hand and outstanding balances, with a detailed list of the suppliers or customers, and of the balances payable by them.
In February, 1950, a check revealed a large shortage in the appellant’s accounts amounting to over £8,000 and in the appellant’s cash statement for the month he showed an outstanding of over £5,400 against himself. The various accounts were gone into an effort to get the appellant to agree the account but he did not do so. Felix Adu Owusu, the Company’s book-keeper at Koforidua, was then transferred to Tafo to assist the appellant to go into the accounts of the various customers and from the 6th February he had charge of one safe containing the account books and receipts, but the appellant remained solely responsible for the station.
One of the customers of the Company, Kofi Ofori, who gave evidence for the prosecution, was called upon to agree his account on the 29th June. He stated that he had received as advances a total of £260 in three sums of £50, £150 and £60, for which the receipts were produced, and declared that he had paid back £80 in two sums of £50 and £30 for which he also produced the receipts. The appellant claimed that Ofori owed interest. This Ofori disputed. Eventually, after an argument, the appellant wrote out an acknowledgment in the ledger which Kofi Ofori signed to the effect that he had gone into his account, which had been explained to him, and that the cash balance owing by him to the Company was £180. This was the balance that Ofori had maintained to be due by him. After this acknowledgment had been made, the appellant, at some time or other, appended a declaration in the ledger in support of his allegation that interest of £250 had been deducted from Ofori’s account to arrive at the balance of £180 before he signed it.
This statement of the appellant as to interest being chargeable had already been denied by Ofori and, although it is not quite clear when he did so, Owusu the book-keeper in tum made a note on the same page of the ledger to the effect that he had signed to witness the account in respect of Ofori’s acknowledgment of £180 but that Ofori had, declared that his account did not carry interest. The ledger contains the detailed accounts of some fifty other customers. In Ofori’s case only is there no account in the accepted sense showing debit and credit items, but the bare written acknowledgment already referred to. It appears on the last used page of the ledger.
After Ofori’s account had been gone into in the manner just stated, a receipt was found by Owusu in the safe of which he had the key, which purported to bear the signatures of Kofi Ofori and H. K. Sarpong. This receipt, which, if genuine, would be presumptive evidence of payment, is in respect of £750 as cash advance against cocoa, from the Company through the appellant, for the 1949-1950 cocoa season. It is dated 11th July, 1949, and bears the figures 11/7/49 over the stamp.
Ofori was emphatic that he did not at any time receive an advance of £750 and both he and Sarpong are equally emphatic that the writing on the receipt is not theirs.
A police officer, expert in handwriting, was called by the prosecution and he gave it as his opinion after comparing the writing on the receipt with the admitted handwriting of Ofori and Sarpong, that the receipt was not written by them.
In his monthly statements of farmer outstanding for August, September and October, 1949, the appellant showed £750 to be owing by Kofi Ofori, in the November return he showed £600, in the December return £390, in the January, 1950, return, £71 6s. 3d, and in the February and March returns £370. The appellant’s case is that he in fact advanced Kofi Ofori £500 in two sums of £200 and £300 and that he had Mr. Hardman’s authority to charge £250 on the advance as interest, which interest was to go into Mr Hardman’s pocket. He says the receipt for £750 was given to cover the advance and interest and that it was accordingly entered in his returns as a lump sum. He denies that the sum of £750 was stolen by him.
As to the count of forgery, Mr Akyeampong for the appellant, has argued that as the learned Judge did not come to a finding whether the figures on the stamp of the receipt were or were not written by the appellant there was not sufficient evidence to support the conviction. As to this point, it is true that the handwriting expert was not prepared to express any opinion when cross examined as to whether the figures were written by the appellant, for the sufficient reason that he had not, prior to giving evidence, had the opportunity to compare the appellant’s admitted handwriting with these figures.
The Court of Criminal Appeal on occasion examines documents in case of disputed handwriting (Thomas Rickard (1)), and we have in this case, compared the figures on the receipt, although the learned Judge decided to ignore them, with figures written by the appellant in the accounts in evidence and we have formed the opinion that the figures were in fact written by the appellant and that the receipt is a clumsy forgery.
As to the conviction of stealing on Count 3 the appellant’s argument is that Hardman told him to charge interest and that the trial Judge did not appreciate this part of his defence and in consequence wrongly convicted him. But whether a system to charge interest existed and whether Hardman was concerned with it, had nothing to do with the issue before the Court which was whether a specific sum of £750 had been advanced. It was sufficient, therefore, for the Judge to find as he did that there was no question of interest in this case. Interest is not mentioned in the receipt nor in the monthly returns of the appellant. It is denied by Kofi Ofori, and it is obvious that this was an afterthought on the part of the appellant in March, 1950, when he was pressed to account.
Next it is argued that there is no finding as to how much money was stolen and that, at most, there was a general deficiency in the account and that the conviction for stealing an unspecified sum cannot be supported. It is clear, however, on the evidence that only £260 was advanced, and the finding that the appellant stole the balance of £750 over and above the advance to Ofori is a conviction that the appellant stole £490.
As to the defence of general deficiency, it is sufficient to refer to Thomas Coles (2), where it was held that if the prisoner admits that he has had the sum charged, he cannot set up such a defence. Applying that principle in the present case the issue was whether £260 as Kofi Ofori alleged, or £500 out of the Company’s money, was advanced. The appellant alleges it was £500, but he supported it with a receipt, proved to be a forgery, for £750. By the monthly returns the appellant admitted his duty to account for the specific sum of £750 of the Company’s money and he cannot therefore be heard to say it was a general deficiency. By means of the receipt and the supporting cash returns the appellant was able to take £490 of his employer’s money.
With regard to the convictions on Counts 10 and 11, the facts proved are that the appellant received a refund from a debt collector of £49 2s. 0d and failed to account for the money and omitted to make an entry of its receipt in the cash book. The facts were not seriously contested. The trial Judge held that the omission was due to an intention to defraud the Company. Upon the evidence it is clear that this money was taken out of the Company’s funds by the defendant for the specific purpose of suing debtors; its payment out was entered by him in the cash book; he omitted to enter it or cause it to be entered in the cash book when the money was paid back to him and later he denied its receipt when questioned. But it is contended that the appellant had ceased to be his own book-keeper in March when the money was refunded by the debt collector and that the omission complained of is therefore not an offence on his part.
Section 278 of the Criminal Code under which the appellant was charged provides that if a clerk or servant or public officer … with intent to cause or enable any person to be defrauded or with intent to commit or to facilitate the commission by himself or any other person of any crime … omits to make a full and true entry in any account of anything which he is bound to enter therein he shall be liable, etc. This situation was considered in Rex v. Butt (3) and R. v. Oliphant (4) The Falsification of Accounts Act, 1875, section 1, under which the indictments in those cases were laid, differs in one particular from the local section but the principle is the same. The English Act provides that it is as offence to omit; or to concur in omitting any material particular from or in any book or document or account, and to this extent it is wider than the Gold Coast Code which does not provide for concurrence in an omission.
In R. v. Oliphant (4) the prisoner was employed in Paris to receive money on account of his employers in London. It was his duty to pay the money into a bank; to enter on slips an account of all such sums and to send all those slips to London. A cash book was kept in London into which those slips were entered by one of the prisoner’s employers. The prisoner received various sums of money which he kept and intentionally omitted from the slips sent to London, knowing that entries omitted on the slips would likewise be omitted from the cash account book kept in London as they, in fact, were. Lord Alverstone, C. J., held that as the defendant knew that an omission from a slip would necessarily involve an omission from the book, it seemed to him that the prisoner had omitted or concurred in omitting a material particular from the book and concurring to omit and Kennedy, J., observed that if there was evidence of an intention on the defendant’s part that the book should be rendered incorrect by reason of the omissions from the slips he would not differ from the judgment. In this case, from February, 1950, onwards, the book-keeper Owusu was employed by the Company to assist the appellant in making up his accounts and discovering the cause of a large shortage. During that period the appellant received the £49 2s. 0d and omitted to tell Owusu, with whom he was in daily contact of its receipt. We are of opinion that the appellant had as much to do with the keeping of the cash book at the material time as Owusu and that he intentionally omitted to make an entry or to request Owusu to make an entry in the cash book with intent to defraud.
It was further argued that the appellant was a Factor or Trustee and not a clerk or servant, so he could not be convicted of falsification and stealing. In the first place there is a misconception in addressing this submission to the eleventh count for stealing, for the appellant was indicted under section 271(1) of Cap. 9 of stealing money to which he had the means of access by reason of his employment by the Company and it cannot be disputed that he had possession of the Company’s moneys at the material time.
Several cases were referred to in the course of the argument whether the appellant was a clerk or servant to bring him within section 278 of Cap. 9, under which the tenth count is laid, Mr. Akyeampong’s point being that the designation of Factor in the appellant’s document of security and the fact that he had a discretion in the matter of advances and that he did not take receipts on the Company’s form, placed him in the position of an independent person. We have considered the cases of R. v. Bowers (5), cited by Mr. Akyeampong and R. v. Negus (6), R. v. Bailey (7), cited by Mr. Young for the Crown and also R. v. Hall (8), R. v. Walker (9), and R. v Dougan (10). In each case it is a question for the jury (in this case the Court) to say if the relation of master and clerk existed between the prosecutor and the defendant. The trial Judge held that the appellant was a servant of the Company because he received a salary for whole-time employment at an office where a regular routine of business was conducted. It is clear from the evidence that the appellant was bound to obey instructions when given, as instance the change in the method of keeping the books in 1949 and the attempt to reconcile his accounts with the bookkeeper Owusu sent to Tafo for the purpose, and the Company had an overriding control, although the appellant may have been given a wide discretion as to detail. He signed the monthly cash statements as assistant in charge. The finding on this point is supported therefore by the evidence.
In R. v. Dougan (10) supra the point was raised whether the defendant, indicted as a servant to wit a Factor, was a clerk or servant within the meaning of section 276, now section 278, of the Criminal Code. In that case the defendant’s contention was that under his agreement all he· had to do was to account for the moneys or goods he might receive. It was held that the prisoner’s agreement and the fact that he had given security would not avail against a charge of falsification.
We consider it proper to refer to a ground of appeal which the Court disallowed as there seems to be some misconception on the point raised. The ground was that “as the appellant was acquitted on Counts 2 and 4 on the ground that the accounts alleged in those counts had not been entrusted to the appellant, he could not be convicted on Counts 3 and 11”. The correct view, of course, is that a verdict on one count is entirely independent of a verdict on another count. And if authority is required it is found in Latham 6- Others v. The Queen (11), where Blackbum, J., observed at p. 199, “Where there are two counts on an indictment they are to all intents and purposes two separate indictments, and although the same jury are sworn to find the truth on both, it is as if two juries were trying two indictments … each count is a separate indictment; so that to make the finding on one count affect the finding on another count would be to make one indictment depend upon another”.
The appeal therefore, fails on all grounds and must be dismissed.
The appellant has applied for leave “to appeal against sentence of three years passed on the ground that the sentences passed on Counts 10 and 11 are excessive”.
There is a misunderstanding as to the framing of this ground of appeal because on Counts 10 and 11 sentences of two years I.H.L. to be concurrent were imposed. Assuming, however, that it was the appellant’s intention to appeal in respect of Counts 1 and 3, in which a sentence of three years I.H.L. was imposed on each count but to be concurrent, this Court will not interfere with these sentences as they are all concurrent and can in no sense be considered excessive having regard to the facts proved.
Appeal dismissed.
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