Richard Garth, C.J. and Prinsep, J.
1. The prisoner in his petition, in which he partly founded his application for a rule, alleged that the learned Judge, in his charge to the jury, directed them, that there was no evidence before them that the peon could make the English 2's. and 3's.; and that, whereupon Mr. Allen, prisoner's counsel, immediately drew the attention of the learned Judge to the peon's own evidence and of his dak book, and to the evidence of Mr. Davis, that the peon knew the English characters and figures; the learned Judge replied: 'I know that; still I maintain that there is no evidence that the peon could make the figures 2 and 3 in the vouchers and could write English figures,' or words to that effect; and the petition further stated, that the learned Judge, throughout his charge to the jury, said nothing to alter or modify the effect of his own directions. The statements in the petition were verified, not only by the prisoner himself, but also substantially by the prisoner's attorney and his attorney's clerk, and by five of the jurymen. Having regard to the circumstances under which the charge was made, and to the obvious and acknowledged fact that the forgery of the figures must have been the work of the prisoner or the peon, the alleged misdirection, if it was one, there is no doubt had relation to a material part of the case: and we have done our best to ascertain, from the notes of counsel and of the learned Judge himself, what was really said at the time of the alleged misdirection, We are bound, of course, in a case of alleged misdirection, to give all due weight to the statement of the learned Judge himself as to what he really said to the jury; and it was very remarkable how very little difference there was in the notes of counsel on one side, and the statement of the learned Judge. The learned Judge stated that what he told the jury was, that there was no proof that the postal peon did make the alterations in the vouchers, and that he meant to convey to the jury, not that the prisoner could not write the figures, because, it was clearly proved that the peon did know English, but that he intended to convey to the jury that there was no evidence that the peon did, as a matter of fact, make, or, by leaving the shop, have an opportunity of making the alteration in the vouchers; that it was not shown that the peon had left the shop, for an instant, or that he had access to pen and ink, or any opportunity of making the alterations in the vouchers. When we look at Mr. Allen's own note of the Judge's charge and alleged misdirection, we found these words: 'Field, J., charges jury 'that no evidence that peon able to alter figures in vouchers, to write these '2's and 3's in the vouchers. Allen draws Judge's attention to evidence 'of peon and postman's book.' Then, further on: 'Court says no evidence that peon wrote these figures;' then Mr. Phillips' note is much to the same effect, and later on in his charge to the jury the Judge told them that the postman's book was on the table, and that if they thought fit they had an opportunity of comparing the writing in that book with that on the altered vouchers; and that, if they thought those altered vouchers resembled the writing in the book, they might give the prisoner the benefit of the comparison. In the first place, we have to consider what really was said by the learned Judge, and, in the next place, what any reasonable man, having regard to what had been proved, and what was said to the jury afterwards, should have understood from the Judge's charge. It is plain, we think, from Mr. Allen's own note, that when the Judge told the jury that there was no evidence, he did not mean to tell them that the prisoner could not write the figures 2 and 3, because it not only appeared in the Judge's own notes that he could, and also in the postman's book written in English by the peon himself, but Mr. Allen called the learned Judge's attention to that fact, when the Judge, without doubting or denying it, said: 'I know that; but still I maintain there is no evidence,' etc.; and he afterwards left the book to the jury to draw any inference from it in favour of the prisoner they might think proper, and did not withdraw from their considerations what Mr. Allen contended was evidence of the peon's manual capability of writing the altered figures. It seems, therefore, that what the learned Judge told the jury, and meant to point out to them, was, first, that there was no evidence that the peon did, as a matter of fact, make the alterations; and, secondly, that there was no evidence that he could have made, that is, have had an opportunity, or facility, for making the alterations; and we think that no reasonable man ought to have construed his words in other than that sense. That being so, we consider that there was no misdirection; and, as in the case it is not shown that in his charge to the jury the learned. Judge committed any error of law, we consequently discharge the rule.
2. I concur in the above judgment. 1 desire merely to add that I had wished to put before the jury, first, that there was no evidence to show that the dak peon had, as a matter of fact, made the alterations; and, secondly, that there was no evidence that he had an opportunity of making them. I understood Mr. Allen, who defended the prisoner earnestly and with much ability, to press upon me that the dak peon's book was evidence that the dak peon did, as a matter of fact, make the alterations in the tickets or pay orders. In that I dissented from him. It had been brought out in the dak peon's evidence, and in Mr. Allen's address to the jury, that the dak peon could write English, and was manually capable of making the figures. I had thought there could be no possible doubt upon this point; but in the course of the conversation that followed, when Mr. Allen drew my attention to the book, I think it possible that he and I were speaking of the peon's ability to make the alterations in different senses, he having in his mind the manual ability of the peon to write the figures; I having in my mind his ability, depending upon opportunity or facility; and it was with reference to this last ability that I pointed out to the jury that there was no evidence that the peon had left the shop; while if there was such evidence, the jury would be bound to give it their careful consideration. On the whole, I see no reason to believe that I said to the jury anything that could reasonably have been misunderstood. I may observe, in conclusion, that I entertain no doubt that the verdict of the jury was correct.