KING v, FRANCIS PERERA et al.

Present: The Hon. Mr. A. G. Lascelles, Acting Chief Justice,
Mr. Justice Wendt, and Mr. Justice Middleton.

THE KING v, FRANCIS PERERA et al.

P. C., Kandy, 4,411.

(1st Kandy Criminal Sessions, 1906.)

Confession-Specimens of handwriting taken while in custody-Statement-Inference of guilt-Penal Code, ss. 456 and 459-Evidencs Ordinance (No, 14 of 1895), $$. 17 and 26.

The accused, who were in police custody charged with forgery of a cheque under section 456 of the Penal Code, and with fraudulently and dishonestly using the said cheque as genuine under section 459, at the request of the Inspector of Police, wrote certain words on a paper.

At the trial of the accused this paper was tendered in evidence by the prosecution, but was objected to by the counsel for the defence on the ground that the words on the paper amounted to a confession. The objection was over-ruled and the paper was received in evidence.

Held, (on a case reserved), that the words written on the paper did not amount to statements within the meaning of section 17 of the Evidence Ordinance and were therefore not confessions within the meaning of section 26 of the Evidence Ordinance; and that they were properly received in evidence.

CROWN CASE RESERVED.

THE case reserved by Wood Renton J. was as follows:-

" 1. The accused Francis Perera and David Perera, were convicted before me at the Kandy Criminal Sessions on the 8th instant, the latter of having fraudulently and dishonestly used as genuine a forged cheque on the National Bank of India for Rs. 686, (Ceylon Penal Code, sections 456, 459); the former of having abetted the commission of that offence (Ceylon Penal Code, sections 102, 456, 459). I sentenced Francis Perera to ten years and David Perera to five years' rigorous imprisonment, but remanded them both to simple imprisonment, pending the decision of the Supreme Court on the following point of law, which I agreed, on the application of counsel for the defence, to reserve.

"2. With a view to connecting the accused with the forged cheque and with certain letters alleged to have been used by them in negotiating it, the Crown tendered in evidence specimen of handwriting taken from them respectively, while under arrest, by Inspector Daniels.

" 3. Inspector Daniels' account of the circumstances under which these specimens were given is set out in full at pages 14. to 15 of the. copy of my notes of the evidence, accompanying this case. For the present purpose it will suffice to say.-(1) that he asked the accused to write certain names and words occurring in the incriminating cheque and letters; (2) that, according to him, they did so voluntarily, although Francis Perera appears to have displayed considerable nervousness, to have asked for brandy, and to have had some difficulty in finding a suitable pen; and (3) that it was not suggested, either in Inspector Daniels' cross-examination or in the argument before me on the point of law, that any pressure had, in fact, been brought to bear upon the accused in the matter.

"4. The specimens of handwriting above referred to are as follows: -

(i.) E1, a letter written by Francis Ptrera, to Mr. Daniels' dictation, in the same terms as the forged letter B2 in the record.

(ii.) E2, a letter written by Francis Perera, also to Mr. Daniels' dictation, in the same terms as the forged letter C in the record.

(iii. ) H, containing one name written by David Perera (Rupe-Singhe) and several names written by Francis Perera.

" 5. Counsel for the defence objected that these specimens of handwriting were one and all inadmissible in evidence, inasmuch as they amounted to ' confessions ' made by accused persons to a police officer while in custody (Evidence Ordinance, section 26). No authorities in favour of, or against, this objection were cited to me, and I over-ruled it after argument.

"6. I told the jury that, while I regarded it as a very bad

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