Rex V. Evans Cecil Ofoi Tyson (1945)

LawGlobal Hub Judgment Report – West African Court of Appeal

Stealing by means of employment contrary to Section 271 (1) of the Criminal Code—Whether Appellant properly convicted in respect of three out of the twelve articles stated in the same count in the Information.

Held : It is not necessary that prosecution should prove all the articles mentioned in the indictment to have been stolen; it is sufficient if the prisoner is proved to have stolen any of them.

Appeal dismissed.

Case of Rex v. Joseph William, 2 W.A.C.A. 289, distinguished.

The facts are sufficiently set out in the judgment.

E. C. Quist (with him K. A. Bossman) for Appellant. N. A. 011ennu for Crown.

The following judgment of the Court was delivered by HARRAGIN, C.J., GOLD COAST :-

The Appellant was charged with stealing by means of employ-

ment contrary to section 271 (1) of the Criminal Code.

The particulars of offence were as follows :—

“Evans Cecil Ofoi Tyson, on a day unknown between the 14th day of August, 1944, and 29th day of September, 1944, in the Eastern Judicial Division of the Gold Coast Colony, stole 12 permits to purchase ammunition Nos. B79834, B79837, B79843, B79873, B79887, B79891, B79893, B79906, B79908, B79921, B79924, and B79931, the property of His Majesty the King, to which permits he had the means of access by reason of his employment as a clerk or servant to the Government of the Gold Coast”.

On this information he was found guilty by the Divisional Court sitting at Koforidua and sentenced to nine months’ imprisonment with hard labour.

Against the conviction he has appealed to this Court.

The short facts of the case are that the Appellant at all material times had been a clerk attached to the District Commissioner’s Office, Akuse, and as such it was his duty to prepare permits under the Arms and Ammunition ordinance for the signature of the District Commissioner. On the 29th of September, 1944, Kwami Dapaah alleged that Appellant sold to him the 12 permits whose numbers appear in the information for £18. This evidence is supported by Samuel Wilson Sackey, and was believed by the learned trial Judge.

In support of their case the Crown called two of the alleged permit holders, who stated that they had never received the permits in question and in one case had never applied for a permit. A third permit was issued in the name of a man who, the Court was satisfied, had died several years earlier.

With regard to the other nine permits, the Crown stated that they had searched in vain for the alleged applicants for the permits ; the suggestion being that the people did not in fact exist. The learned trial Judge was not satisfied with these enquiries, stating in his judgment that it was conceivable that the Appellant obtained possession of them otherwise than by theft, from which he must have meant that it was possible, though improbable, that the Appellant had delivered the permits quite properly to the permit holders, who, for some reason unknown, such as that they had no further use for them, had returned the permits to the Appellant, in which event the Appellant could not be convicted of having stolen the permits. The trial Judge therefore gave him the benefit of the doubt with regard to these nine permits, but with regard to the others he stated that he was satisfied with the case for the Crown.

The Appellant has appealed on a number of grounds, but there is only one of any substance, which reads as follows :—

Misdireotion:

” (b) Learned trial Judge misdirected himself on the question of larceny of Exhibits 134, 1)6 and D10, three of the 12 permits alleged to have been stolen by accused, as he found that it was conceivable that accused obtained possession of some of the said permits otherwise than by theft”.

This ground is not very clearly set out, but in the course of the argument it emerged that the point being taken by counsel for the Appellant was that as the Appellant was charged with stealing 12 permits at one and the same time (otherwise he would have been charged on separate counts) and as the learned Judge had…found that the Appellant was not guilty of stealing 9 of them it was impossible that he could have been guilty of stealing the other three, and in support of this argument he quoted Rex v. Joseph William, 2 W.A.C.A., p. 89, where the following words occur :—

” The accused was charged on one count with the manslaughter of three persons, section 325 of the Criminal Code. As the offences were made the subject of a single count, they must be looked upon as consisting

Rexof one single act, for it is a well established rule of law that no one

v.count may charge an accused with having committed two or more separate

Evansoffenees. In view of the above it was not open to the learned Judge

Cecilto acquit the accused of the manslaughter of the child Victoria and

Of oiconvict him of the manslaughter of the other two persons “.

Tyson

The facts in that case were that the Appellant was charged with

Kamen,

C.J.manslaughter in that he drove a motor oar with criminal negligence

and killed three persons at one and the same time. The West African Court of Appeal in effect said in that case that as he had been found not guilty of criminal negligence with regard to one of the persons, clearly he could not be convicted of criminal negligence with regard to the other two. This is not so much a rule of law as a rule of common sense with which we, with respect, concur, but the facts in this ease are entirely different. The Appellant here is charged with stealing 12 permits. As regards 9 of these permits the Judge is in some doubt and thinks that it is just possible that the lawful owners of the permits had given them to the Appellant, but with regard to the other 3 the trial Judge is satisfied that he did in fact steal them and quite correctly in our view returned a special verdict to the effect that the Appellant was guilty of stealing 3 only of the 12 permits mentioned in the information. In other words, the Court has found him guilty of one part of a divisible count and acquitted him of the residue, vide 31st edition, Archbold’s Criminal Pleading Evidence and Practice at page 186 and also page 519, where it is stated : “It is not necessary that the prosecutor should prove all the articles mentioned in the indictment to have been stolen ; if he proves the prisoner to have stolen any one of them, it is sufficient”. To hold otherwise would lead to an absurd situation, as for instance where a person is charged with shoplifting and the facts are that on entering a shop he buy& one article and steals 11. On being caught at the door with the 12 articles in his possession he is charged with the theft of the 12 articles : when put upon his defence in a Court of law he produces a genuine cash bill for one of the articles. On the argument adduced by counsel for the Appellant he would then be entitled to an acquittal on the whole charge.

We are of the opinion that the Appellant was correctly convicted with regard to the 3 permits in question, and the appeal is dismissed.

Appeal dismissed.