Rex v Hymans

• Jurisdiction: South Africa
• Judge: Innes CJ, De Villiers JA, Kotzé JA, Wessels JA and JER De Villiers AJA
• Judgment Date: 11 October 1926
• Citation: 1927 AD 35
• Hearing Date: 16 September 1926
• Court: Appellate Division

Innes, C.J.:

The appellant was convicted, on two separate counts, of forging and uttering a cheque for £50, and was sentenced to two months' imprisonment with hard labour on each count, the sentences to run concurrently. The Cape Provincial Division confirmed the finding; and the matter is now before us on special leave. Several grounds of appeal were noted; some wore untenable upon the face of them; and Mr. Roper was well advised to concentrate his attention upon the question whether the count for forgery as drafted disclosed an offence. The principles which underlie that enquiry are decisive of any other substantial legal ground of appeal. The charge as drafted alleged that the accused "did wrongfully, unlawfully, and With intent to defraud, forge a certain-instrument commonly called a banker's cheque, purporting to be drawn by Henry Taylor Kinloch upon the National Bank of South Africa for the payment to the said accused or order of the sum of £50." Those averments it was contended, were insufficient, because they contained no allegation of prejudice, actual or potential, nor could such prejudice be inferred p from the facts stated. Forgery was a branch of the crimen falsi; it was an essential element of that crime that a wilful perversion of the truth, made with intent to defraud, should prejudice, or be calculated to prejudice, a third person; and an allegation express or implied to that effect was necessary to the validity of an indictment for forgery. The argument was supported by considerable reference to authority, but reliance was mainly placed upon the recent decision of this Court in Jones and More v Rex. Now that case laid down no new law; it merely gave effect to old and recognised legal principles. The accused were charged with fraud, in that they induced certain persons to purchase and pay for shares in a joint stock company by fraudulent misrepresentations as to the prospects, activities, and management of the company. There was no allegation in the indictment that the shares were worth less than the price paid, nor, in the opinion of the Court,

Innes, C.J.

could that inference be fairly drawn from the facts stated. It was held that the existence of an essential element of the crime of fraud had not been averred, and that the indictment was on that account faulty. It is important to observe that the charge there related to a completed transaction; the representations had been acted upon. The Court...