25th April 1911
Reference Numbert19110425-61
VerdictGuilty > unknown

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O'BRIEN, Joseph (23, theatrical manager) , having been entrusted by Walter Mills with £20 in order that he might retain the same in safe custody, unlawfully and fraudulently converting the same to his own use; (second count) obtaining £20 by false pretences from Walter Mills, with intent to defraud.

Mr. W. R. Briggs prosecuted; Mr. H. D. Roome defended.

WALTER MILLS , theatrical manager, 111, Moore Park Road, Wal-ham Green. In November last I saw an advertisement offering employment in the theatrical line (Exhibit 4 produced). I do not think it was Exhibit 4; prisonerwas often putting that advertisement in. I called at 6, Lidlington Place, where I saw prisoner. He said his name was Joseph O'Brien, that he was a theatrical manager, that he had £5,000 behind a show called "The Shadow of a Crime," and that he had scenery stored at Manchester worth £60. He said that he used the one furnished room Ifound him in as his offices and that he lived at 58, Elgin Mansions, where he had a piano worth £100. He askedme whom I had been with and I gave him rences. I then left. He wrote me, asking me to call on him. I called and he said that I was the sort of man he wanted and offered to engage me for six months. I said I would sooner be engaged for a month because if we did not suit each other it would be easier to go. He agreed, but said I was very foolish. He said that as I should have money passing through my hands he would want £20 as security. It was

arranged that I should receive £3 a week and £1 a week during the three weeks' rehearsals. About December 1 he sent for me again and he drew up this agreement (Exhibit 1) in my presence. I gave him £20 and he gave me this receipt (Exhibit 2). We both signed the agreement, which states that I deposit the sum of £20 security, which was to be returnable at the end of the tour or when I left his service. I believed everything that he said or I should not have given him the £20. I attended rehearsals almost daily for three weeks and on December 24 we went to Euston Station for Northwich. At his house that morning he borrowed a sovereign from me because he said he was short of the fares. We were one week at Northwich and then we went to Colchester, where we were three days. From there we went to Stratford, where we stayed one week. The tour broke up there for the want of money. Prisoner left, leaving the company stranded; they had to stop there as they were not paid and had no money. I received altogether as wages £2 for the six weeks. He returned the £1 I lent him at the end of the week. I asked him for the return of my deposit and he gave me an I.O.U. On February 3 I received from him this letter (Exhibit 3) stating, "I am prepared on condition you write and say you accept to pay you £15 on the 25th of this month and the other £5 two weeks after that date. Please write me by return and I will send you my I.O.U. as above." I agreed to that and he sent me his I.O.U. On February 21 I went to 6, Lidlington Place, and saw him. He did not pay me; he treated thematter as a joke. At Stratford he tried to raise a loan on the scenery. I know it was bought at Manchester, but he told me after the show broke up that it was on the hire system.

Mr. Roome contended that the evidence did not support either count of the indictment. As to the first count, themoney had not been handed to prisoner on safe custody or trust since he was not bound to return it in specie (R. v. Hotine, 68 J.P., 143). As to the second count, in order to substantiate a charge of false pretences the prosecutor musthave intended to part with his property out and out, which was not the case here since prisoner had obtained the money on credit. (R. v. Coyne, 69 J.P., 151).

Mr. Briggs, while admitting that the facts in R. v. Hotine were indistinguishable from this case, contended that it was not good law (in re Bellencontre, 1891, 298 at p. 142); (R. v. Lord, 69 J.P., 467); that anything which was property within the Larceny Act, 1901, may be the subject of safe custody, or trust within that Act, and that to contend that moneywhich was not actually returnable in specie did not come within that Act was applying too narrow a definition." Property" was defined in the Larceny Act of 1861 (which the Act of 1901 was meant to extend) as "Every description of real and personal property, money," etc. It was true that the decisions in R. v. Cooper (L.R. 2, C.C.R., 123), and in R. v. Newman (8, Q.B.D., 706) seemed against this contention, but they were inconsistent with the decision in R. v. Fullagar (1A Cox, 370) and, moreover, were given before the passing of the Larceny Act of 1901, which was passed to overcome many difficulties in the way of bringing offenders within the repealed sections 75 and 76 of the Larceny Act, 1861, Finally, if Mr. Roome's contention as to the first count was good, then, since the identical coins were not to be returned, the prosecutor had actually parted out and out with the possession of his property, this bringing prisoner within the second count.

The Recorder stated that having regard to the careful decision of the Common Sergeant (after consultation with Mr. Justice Phillimore) in R. v. Hotine, he did not feel that there was sufficient to distinguish this case in order to have

it reviewed, and he would therefore direct the Jury to acquit prisoner on the first count, but that in his opinion therewas evidence for the Jury on the second count; there may have been credit obtained, but money was obtained as well.

Cross-examined. I call myself a theatrical manager, but I was not so with prisoner; I was simply engaged to look after his interests. The only experience I have had as theatrical manager was ten years ago when I held that post for sixmonths. I had nothing to do with the success or failure of this show, prisoner took the sole responsibility. I gave him myreferences and I presume he took them up. He was advertising daily and he would have as many as ten answers a day. He put a similar advertisement to the one which I answered after he engaged me. The one I answered was something to the effect of Exhibit 4. ("Stage, a young gentleman of refinement to learn duties of management in play of repute. Commence Christmas. Small premium. Good salary. Tour guaranteed.") No premium was mentioned when I first saw prisoner. He did not ask me if I had come to learn the duties of management. He engaged all the artistes. He is knownunder four different names. He never showed me any contracts, he may have had two for the places to which we went. He gave me a Mr. Cockran as a reference, but I could not find him at the time. Prisoner afterwards made appointments withme and others he had not paid to meet him at this man's house, but he never kept them. I cannot say whether I told prisoner the extent of my experience as a theatrical manager, but he could have got that from my references. I wascertainly competent for a company like his. Amongst other duties I had to see the people did not come in without paying and to see they all received checks. I had to look after his interests generally. It is true I said at the police court that I am competent to deal with theatrical printing, but I was not engaged in this case to do that. I know nothing whatever about printing. It was the manager's duty to attend to that and I was not manager. I should think a capital of about £300 would be required to run a piece like prisoner's. I do not see that it is ridiculous to say he said he had £5,000 invested in it; he said he had £5,000 behind it. He told everybody he had any amount of money in the show. He never told me that he had the scenery on the hire-purchase system; he said it belonged to him. He said he was lessee of the play. He did not borrow the sovereign from me in order to pay a salary; it was to help pay the fares. On the first night at Northwich the theatre was packed, and for part of the time I took the tickets. I do not remember his complaining tome that although the theatre was full only £14 13s. had been taken. That is all he could have expected to take; it was only a wood and iron building. He never said I was incompetent until I asked for my £20 back; he certainly never gave me notice. I believe he paid his artistes in full at Northwich, but at Colchester he only paid them for the three days they had worked. He said he was sorry he could not pay me, but if I waited till we got to Colchester he would gethis cheque and then pay me. I heard something about his having discounted a promissory note which was dishonoured.

Re-examined. Nothing which I had to do under the agreement and which I actually did affected the failure or success of the tour. The agreement states that there is to be a month's trial and if he is not satisfied a fortnight's notice can begiven on either side. I have never seen this agreement between prisoner and the manager of the Stratford Theatre for thelatter to supply the scenery on the hire system.

(Tuesday, May 2.)

WALTER MILLS , recalled, further re-examined. Prisoner told me at the finish on January 14 that the scenery was on the hire system and he was paying 30s. a month. He never gave me any money with which to pay theartistes. He never paid anyone at Stratford; one of the artistes came round and broke his windows. He always gave his landladies I.O.U.'s.

Police-sergeant STEPHEN CRUICKSHANKS , S Division. At 11 a.m. on March 14 I arrested prisoner and read the warrant to him. He said, "It's a lot of rot."I took him to the station. When charged he made no reply.


JOSEPH O'BRIEN , Theatrical Manager, 20, Harrington Street (prisoner, on oath). I used to live at 6, Ledlington Place. At present I am manager of a Variety Agency and have been earning this month from £10 to £15 a week. I am about to sign a contract to tour a play as general manager at the end of this month. These engagements have been obtained during the hearing of this case. I leased the play, "The Shadow of a Crime "for six months. I have used different names to escape from my wife from whom I was separated and who molested me; she was an inebriate and is now dead. On November 24 I advertised for a young gentleman to learn the duties of management at a small premium. That and a similar advertisement on December 12 are the only advertisements I have ever issued. I had six answers, of which Mills's was one. I wrote him making an appointment, and he called where I was living then in one room at 6, Ledlington Place. I told him I leased the play "The Shadow of a Crime,"and he said he had heard of it, and that he was prepared to pay 15 guineas as the premium, of which he paid me £2 as deposit. I gave him references. Nothing was said about scenery; if I leased a play I should naturally lease the scenery. I leased the scenery. Neither £5,000 nor any other sum was ever mentioned. I could run a play like this on £20 or £30. I showed him contracts that I had made with theatre managers at Northwich, Colchester, and Stratford. He left saying he was quite satisfied. He wrote me saying he had a suggestion to make. I have since lost that letter. He called and said as he was a competent manager would I waive the question of premium if he paid me £20, to be returnable if he did his

duties properly. I drew up this agreement (Exhibit 1), which we both signed. I had no intention of defrauding himwhen I took his £20 and if he had proved competent I should have returned it to him. I engaged him to take my place as manager when I could not be there. I gave him money with which to pay the artistes. They all had their money with the exception of a few shillings owing at Stratford. I started the tour on £50. I borrowed a sovereign from him to lend one of the artistes, my £50 having been eaten up with the expenses. At Northwich the theatre was packed every night, but to my astonishment my share of the takings at the end of the week was only £17 10s. I left Mills in charge at the front of the theatre and he allowed the local managers to do me by issuing tickets twice. The very first day we opened I gave him notice when I found what the receipts were. He is an incompetent and an illiterate man and could not do his duties as manager. I paid him £2 that week. I was in a position to return his £20, but as I had lost money through him I did not see why I should. I can do so now if I want to. I lost money at Colchester, but I paid my artistes for the three days they had worked. I was short of money also because I had discounted a promissory note which was dishonoured. I have never stranded a company in my life. I was the last one to leave Stratford and was able to pay everybody in full except a few shillings. I lost £50 on the whole tour through Mills. He asked me for his £20 back and I at first arranged to return it to him, but I was afterwards advised not to do so and I did not do so. The reason why I inserted the second advertisement was to get pupils for Mills to teach, but I had to refuse seven or eight offers as I found he was incompetent to do so.

Cross-examined. It is a formal thing to take security for a man's competence; everybody knows that. I offered to payhim back at first because he kept on worrying me. I wrote him saying that I would not return him his money because he had been incompetent previous to my letter offering to repay me. I did not leave Lidling-ton Place without paying my rent. I sent my landlady at Northwich a postal order after I left. The lessee of the theatre at Colchester advanced me the fares to Northwich; that was a matter of form; he deducted it from the takings. Mills understood before he signed the agreement that I only hired the scenery. I had to take a part myself and Mills had to take my place as manager, but he was utterly incompetent to do so. The heading on Exhibit 2 properly describes the nature of the company. I arranged what places we should go to and I engaged the artistes; these are very important features in the success of the tour. All the local people at Northwich belonged to one family and the way they did me was that the attendant, after taking a ticket would take it back to the box-office and it would be sold again. It is true I could gauge the returns from the seating capacity of the theatre. I made a row about it at the time. I did not pay Mills his salary because he was not worth it.

In summing up the Recorder directed the Jury to acquit prisoner on the first count, stating that the money was not paid on safe custody, but as security to be returnable.

Verdict, Not guilty on the first count; Guilty on the second count.

Mr. Roome stated that no object would be served by postponement of sentence (which the Recorder had suggested)since prisoner had no money with which to return the prosecutor his £20.

GEORGE LEE COCHRAN , Barrister, gave evidence as to character.

It was stated by the police that since 1909 there had been a series of complaints of a similar character against the prisoner.

Sentence: Three months' without hard labour.


(Saturday, April 29.)

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