Appeal from
Divisional Court. exercising
appellate jurisdiction.
Convictions for stealing,
contra. sec. 276 (1) of
Cap. 29.
Held:
Evidence unsatisfactory and
appeal allowed.
There is no
need to set out the facts.
C. S.
Acolatse for Appellant.
S. E.
Ellis for Respondent.
The following
joint judgment was delivered:-
KINGDON, C.J.,
NIGERIA, PETRIDES, C.J., GOLD
COAST <WD WEBB, C.J., SIERRA
LEONE.
The appellant
appeals against his conviction
upon two charges of larceny
contrary to section 276 (1) of
Cap. 29, one charge being in
respect of three Goodyear and
four Dunlop motor tyres alleged
to have been stolen in August,
1937, and the other in respect
of three Goodyear motor tyres
alleged to have been stolen in
September, 1937. Upon another
charge regarding other motor
tyres alleged to have been
stolen in October, 1937, the
appellant was acquitted. Three
other persons were tried with
the appellant on charges of
receiving motor tyres in
October, knowing the same to
have been stolen, and two of
them were convicted. On appeal
to the Divisional Court the
conviction of the appellant was
affirmed but the two persons who
had been convicted of receiving
were acquitted.
The appellant
was employed by the United
Africa Company as storekeeper at
their branch at Kumasi, and it
appears that at the monthly
stock-takings for August,
September and October, there
were found to be deficiencies
including the items in respect
of which he was charged. The
appellant was unable to account
for the disappearance of these
items otherwise than by saying
that it might be due to "wrong
issues," or to sales on credit
(which he was not authorised to
make), but admittedly there was
no attempt at concealment by
him, and it would seem that the
reason why criminal proceedings
were taken was that the
company's representative
believed that it would be
possible to establish that the
appellant had fraudulently
disposed of some of the tyres to
the three other persons who were
charged with receiving.
But, as has
been seen, these charges broke
down and the appellant himself was
acquitted in respect of the
shortage found on the stock-taking
for October. All that was left,
therefore, to support the two
remaining charges against the
appellant was the fact that these
tyres were missing from his stock,
and unaccounted for, at the end of
August and September. And it is
very plain that, in the
circumstances in which the
company's business is carried on,
a mere deficiency in stock is not
regarded very seriously, much less
taken as prima facie
evidence of dishonesty; the
Manager said in his evidence " The
deficits are never taken " as
money stolen unless we have some
definite proof," and the extracts
from the ledger showed that month
after month there were shortages
of stock, sometimes of a
considerable amount, of which no
particular notice appears to have
been taken.
At the trial
there was put in evidence a
statement (Exhibit " s") made by
one of the persons charged with
receiving, AJequaye, the sense of
which was extremely damaging to
the appellant while exculpatory of
Ayequaye himself. In his sworn
evidence at the trial Ayequaye
denied that he had ever made this
statement, which he said he had
been compelled to sign by the
Police Inspector. While all these
matters were proper to be
considered so far as regarded the
trial of Ayequaye it was necessary
for the Magistrate to warn himself
that the statement (Exhibit " S")
was not evidence against the
appellant. From his judgment it
does not appear whether or not he
did so, and it may be that it did
affect his mind.
In all the
circumstances we are of opinion
that the evidence does not support
the conviction; the appeal is
accordingly allowed, the
conviction and sentence quashed,
and it is ordered that a judgment
and verdict of acquittal be
entered. |
