Rex V. Onasimus Offiong (1936)

LawGlobal Hub Judgment Report – West African Court of Appeal

Charge of attempted rape contra section 359 Criminal Code—Accused Appeal acquitted of that offence but convicted of indecent assault contra against Con-viction bysection 860 Criminal Code, section 58 (1) of the Criminal Procedure High Court Ordinance being invoked to justify such conviction.

Held . The charge of attempted rape is indivisible, consequently part of it cannot be proved and section 58 (1) of the Criminal Procedure Ordinance cannot be applied, and conviction quashed.

The facts are sufficiently set out in the judgment.

A. Kayode for Appellant. Ivor Brace for Crown.

The following judgment was delivered :—

KINGDON, C. J., NIGERIA.

Accused, who was charged with attempted rape only, was found not guilty of that offence but guilty of indecent assault.

It has been contended on behalf of the Crown that appellant, although not actually charged with the offence of indecent assault, was rightly convicted of that offence by reason of the provisions of section 58 (1) of the Criminal Procedure Ordinance which is in the following terms :-

” 58 (1) When a person is charged with an offence, and part of the charge is proved, but the part which is proved amounts to a different offence, he may be convicted of the offence which he is proved to have committed, although he was not charged with it

It is not open to doubt that there was ample evidence on which the Court below could come to the conclusion that accused had committed an indecent assault if the acts in respect of which accused was found guilty of that offence can be said to constitute part of the offence of attempted rape.

It appears from the judgment that the trial Judge was satisfied that accused entered the room of complainant uninvited, took off his clothes and expressed a desire to have sexual connection with her and actually caught hold of her.

It was contended that from this finding it followed that part of the charge of attempted rape has been proved.

These acts clearly fall short of an attempt to commit rape.

O na

v. simns They are merely acts which indicate that accused wanted to have and ()thong.had made preparation to have connection with complainant.

Kingdon,In the opinion of this Court the charge of attempted rape is

C.J.indivisible and the acts found by the Judge constitute at the most

preparation for an attempt to have unlawful carnal knowledge of the complainant and it cannot therefore be said that part of that charge has been proved.

The conviction is quashed and it is directed that a verdict of acquittal be entered.