Rex V. Ernst Friedrich (1944)
LawGlobal Hub Judgment Report – West African Court of Appeal
Criminal Law—Criminal Code, s. 271 (1) ; s. 34—Stealing by means of employment ; defence of lawful appropriation.
Facts
Appellant was charged on seven counts with stealing by means of employment on certain dates ; but he was convicted on counts 4, 5 and 6 only. There was no concealment or attempt at concealment of the respective appropriations : in every case his account was debited with the cost of the goods appropriated. He was manager of de Santos’ business with practically a free hand, and de Santos had written to him to say : ” Regards the lime-Franklin venture, of course I will be in it “. The goods set out in counts 4 and 6 were appropriated by the Appellant to be used in the ” lime ” venture. As regards the goods set out in count 5, Appellant said he sold them to Abdo, who credited Appellant’s personal debts. On appeal it was argued that Appellant’s appropriation was lawful and exonerated within the terms of s. 34, the necessary proof being furnished by his acquittal on counts 1 and 2 ; and in regard to count 5, that de Santos had previously approved his having materials for his personal use and charging himself at stock prices. At the dates set out in counts 1 and 2 Appellant’s account with de Santos was in credit.
Held
(1) that before section 34 comes into operation it must be proved that it was lawful ” to appropriate the particular moneys or other things or any of them ” ;
- that the acquittal on counts 1 and 2 having been due to the trial Judge’s giving Appellant the benefit of the doubt, in view of his account being in credit, was no proof that the appropriation was lawful, and the Judge was right in ignoring s. 34 in regard to those counts ;
- that in regard to counts 4 and 6, as Appellant had a practically free hand and Santos had said he would join the ” lime ‘ venture, Appellant was entitled to an acquittal in respect of the goods he gave for that venture ;
- that in regard to count 5, Appellant was dishonest in giving Abdo goods belonging to de Santos for the purpose of repaying his own debts.
The Appellant’s appeal upon count 5 is dismissed and the conviction and sentence upon that count arc upheld.
