Stealing contra section 271 (2) of Criminal Code.

Twenty-nine accused were uniformed members of the band of the Territorial Farces and were travelling on two lorries (the drivers of which were the other two accused) foom Cape Coast to Accra. In the course of the journey looting occurred at two villages and arising from it all accused were charged on three counts with stealing contra section 271 (2) of the Criminal Code. By inadvertence sixteen only of the accused were mentioned by name in the information in respect of count 2. There was no individual identification of the accused but circumstantial evidence of identification was led. At the trial all but two of the accused were represented by counsel who did not call evidence. The two accused who were unrepresented gave evidence on their own behalf and called two of the co-accused in their defence, and the latter in the course of their evidence denied the charges in toto. In his summing up the learned trial Judge mistakenly informed the Jury that none of the accused who were represented by counsel had given evidence. The thirty one accused were convicted on all thre!} counts and appealed against their convictions and sentences.

Held: With regard to the two appellants who were witnesses for two of the other appellants there was misdirection of the Jury and their appeals allowed; with regard to the fifteen appellants whose names did not appear on the information in respect of count 2 their convictions on that count were quashed; all oth:.-r appeals disn.issed there being ample evidence upon which to con"lct but all sentences reduc!'d from imprisonment to fines.

Arthur Ridehalgh for Crown.

A. G. Heward-Mills (with him A. B. Amissah) for all appellants save the twenty-ninth appellant.

Frans Dove the twenty-ninth appellant.

The following jbint judgment was delivered :­STROTHER-STEWART. AG. C.J .. GOLD COAST, DOORLY AND M·CARTHY. 11.

This is an appeal against the con victim) of 31 persons on charges of stealing under section 271 (2) of the Criminal Code at the Assizes held at Winneba on the 30th day 01 August. 1939. They were charged under three counts. and the charges all arose out of incidents which occurred on the 9th day of June. 1939. when the appellants were returning from Cape Coast to Accra after taking part in the King's Birthday celebraticm. They were members of the band of the Territorial Force. and were travelling in two lorries. The dri-vers of the two lorries were included in the number of persons convicted. The charges took their basis out of looting which had taken place at two villages through which

they had passed.

REX ...

 

 

.. C'.

 

 

 

 

2-U';'

 

 

Appeal Court, 23rd Nov., 1939.

Appeals from convictions in Supreme Court.

162

Rex

v.

Tawiah .1: ors.

Strother­Stewart, Ag. C.J., Doody and M'Carthy, JJ.

 

 

Rex v. Tawiah & ors.

The names of all 31 persons appeared in the information in respect of counts 1 and 3, but through anjnadvertence in copying out the information, only 16 of the names of the 31 persons appeared in count 2. This was not noticed at the time the appellants were arraigned, and all appellants were called upon to plead in respect of all three counts, and did so, and all were convicted. The conviction of the 15 appellants whose names were not mentioned in count 2 must accordingly be quashed, as far as their conviction in respect of that count is concerned.

The 31 persons were not identified individually by the storekeepers, and villagers, of the places in which the looting took place though all the witne~ses for the Crown described them as volunteers. It was impossible for them actuaUy to identify the person~ they described as volunteers, as there were so many of them, and they were strangers, but the occupants of the two lorries, whose numbers were taken by one of the witnesses for the prosecution, were known to have travelled in the two lorries from Accra, as was adduced in evidence for the prosecution, and the same persons were found in the lorries, when they were apprehended in the lorries by the police at the Police Depot before entering Accra, and after the looting had taken place. The evidence for the prosecution was that aU had taken an active part in the looting. In addition to this, goods which were alleged to have been taken were found in the possession of a number of the travellers on the lorries, which were identified by the storekeepers, who had been the victims 01 the looting, as their property. Some of such goods, such as tins of corned beef, might have been obtained from other stores, or even issued as rations, but others of the goods were of quite a different category and capable of identification. It cannot, therefore, be said that there was no evidence upon which the jury could convict, either in respect vf the individuals who were charged with 5tealing, or in respect of the goods which were found in their possession.

We are satisfied that all the appellants were acting as one, and that the possession of anyone of them was the possession of all.

The defence alleged that there was misjoinder of charges, and misjoinder of accused. The matter is governed by our own local Ordinance, namely, the Criminal Procedure Code (Cap. 10). We set out the mbsections of the twosecti( IS which appear to the Court to apply to the cases we are comidering. They are as follo\'.'s :-

"Section 103 (a): Where a person is accused of more than one offence of the same kind committed within one year of each other, he may be charged and tried at the same time for any number of them not exceeding three; ".

"Section 104 (d): Persons accused of difterent offences committed in the course of the same transaction."

 

 

"

Rex v. Tawiah & ors.

As already indicated, the appellants on the day in question were a party of men wl\-o were travelling together. The offences in respect of which they were charged were all committed on the same day, and in the cour~e of the same journey. The circum­stances were similar in each case, and justified the inference that they were the result of a preconcerted arrangement.

We are of opinion that these offences formed part of the same transaction within the meaning of sections 103 and 104 of the Criminal Procedure Code. We therefor.e hold that there was no misjoinder either as to charges or as to persons.

It was further pointed out on behalf of the appellants with regard to charges '2 and 3 that the evidence for the prosecution was to the effect that some of the appellants raided one store while the others raided an adjoining store simultaneously. The persons charged were however net individually identified. In view of this, it was asked, on what ground were the 16 persons included in count 2 selected for prosecution for stealing from one parti~ular store, and why were the 31 accused all charged with stealing from the other store? I

Under section 46 of the Criminal Code, where a crime is actually committed, an abettor of such crime is deemed to be guilty of the crime. Thus in this case if both stores mentioned in counts 2 and 3 were looted in pursuance of an agreement betwe~n the 31 accused, all could be convicted as principals, if they were so charged. The evidence in support of count 2 was that all the occupants of the two lorries took part in the looting of both st-Jres.

There was ample evidence upon which the jury could come to the conclusion that though each store was looted by only some of the appellants, yet those who did not steal with their own hands from one store or the other, or even enter that store, nevertheless abetted the crime. This ground of appeal must therefore also fail.

A difficulty has arisen in respect of two of the appellant~, namely, Joseph Lamptey and Nathaniel Lartey Mingle. Mr. Heward-Mills who at the trial represented all the appellants except Sam Bannerman and George Tetteh Laryea; who were the drivers of the two lorries, intimated at the close of the case for the prosecution, that he would not call any of his client~ to give evidence. The other two appellants elected to give evidence on their own behalf, and called Joseph Lamptey and Nathanie~ Lartey Mingle two of their co-accused as witnesses. The latter !"aid that they, as well as the two drivers for whom they were giving evidence, n~ver left the lorries, and that they saw no looting take place. They declared their innocence of the charges brought against them. The jury diSbelieved this evidence, and the two drivers were convicted, and it is difficult to see how Joseph Lamptey, and Nathaniel Lartey Mingle, who, whilst giving evidence for them, set up the same defence for themselves could have escaped the same fate. Nevertheless the learned trial judge in his note of his

114

 

 

163

Rex v.

Tawiah & ors.

Strother­Stewart, Ag. C.}., Doody and M'Carthy,

}}.

164

Rex

v.

Tawiah & ors.

9trother­Stewart, Ag. C.J., Doorly and M'Carthy, JJ.

 

 

Rex v. Tawiah & ors.

summing up to the jury, said, when dealing with the evidence of, the two drivers, that the other 29 accusM did not give evidence. This was not strictly correct and may have given the jury the impression that there was some distinction between the weight to be placed on evidence given by an accused person on his own behalf and that to be given to his evidence when called by one of his fellow accused. This is not so. It is possible that had the jury had their attention drawn to the fact that Joseph Lamptey and Nathaniel Lartey Mingle, ,had, whilst giving evidence for the two drivers, also given evidence for themselves, it might have had some influence with the jury in their favour. We think this amounts to a misdirection in law as far as they were concerned, and although the result is anomalous, we feel we have no option but to allow their appeal, and quash their conviction on all counts, which we do.

The names of those whose convictions are quashed in re£pect of count 2, through their being improperly arraigned, except Nathaniel Lartey Mingle, whose conviction on all three counts has just been quashed, are-Robert Agiri Ashley, Emmanuel Lampte)', D. T. O. Ahineakwa, Kobina Attah Amoah, Jacob A. Addo, Emmanuel Abiodu Palomeras, Daniel O. Armah, Samuel Tettey Tetteh, Frederick A. Lamptey, Felix Hammond, Ebenezer L. France, James A. Kotey, Joseph Akai Nettey, and Brandford Boy.e Hammond.

Except as aforesaid the appeal in respect of the con victions of all the appellants in respect of all the counts will be dismis£ed.

There is an appeal against sentence in respect of all the appellants. Xhey are young men. They were members of the Territorial Force. They were returning home after a celebration of the King's Birthday in which they had taken part. They probably had old customs in their mind. What they did was wrong, and they must have known that what they did was wrong, and they disgraced the uniform they were wearing.v..'e feel, however, that in view of all the circumstances, the sentence of the trial Judge of imprisonment should be altered to a fine. In fixing the fine we are going to be governed by the ages of appellants. The following who are 20 years of age, or under, will be fined £2 10s. on each. count, on which their convictions are upheld, non-cumulative, or in default 1 month's imprisonment with hard labour :-Ebenezer Tawiah, Enoch Allotey Quartey, Daniel Robert Akrong. Robert Agiri Ashley, Emmanuel Lamptey, D. T. O. Ahineakwa, Jacob A. Addo, Emmanuel Abiodu Palomeras, Daniel O. Armah. Frederick A. Lamptey, Felix Hammond, Ebenezer L. France, James A. Kotey, Joseph Akai N ettey, Brandford Boye Hammond, George Allotey, J05eph M. Komia, James Kwamina Quaye, Stephen Ahile Quao, Emmanuel Okoe Abbey, Emmanuel K. Quartey, Enoch Saka Quarshie, Emmanuel O. Martins, and Jacob Kwaku A. Laryea.

The following, who are over 20 years of age, will be fined £5 on each count, on which their convictions are upheld, non-cumulative,

 

 

• .

Rex v. Tawiah 0- ors.

 

 

165