Appeal Court, 2nd May, 1939. Appeals from convictions by High Court.

Charges under section~ 421 and 390 of Criminal Code discussed­ Duplicity and alternative charges-Substitution of verdict under section 11 (2) of West African Court of Appeal Ordinance.

Held: Where there is evidence of a false pretence and not of a fraudulent trick or device the Court should exercise its power under section 59 (2) of the Criminal Procedure Ordinance and should convict under section 419 where accused has been charged under section 421.

Held further: That the charge of stealing under section 390 should have been treated as alternative to first count under section 421 and not as bad for duplicity.

Held further: That persons convicted of principal offence of obtaining by false pretences should not also be convicted under section 430.

Convictions of 1st and 3rd accused under section 421 set aside and verdict of guilty under section 419 substituted.

Convictions of 1st and 3rd accused under section 430 quashed. Appeals of 2nd and 4th accused dismissed.

There is no need to set out the facts.

E. Hallinan for Crown. Appellants in person.

The following joint judgment was delivered ;-

BUTLER LLOYD, AG. C.J., NIGERIA, GRAHAM PAUL AND BROOKE, JJ.

The four appellants were charged on three counts :­(1) Cheating, contra. Sec. 421 c.c.

(2) Stealing, contra. Sec. 390 C.C.

(3) Being persons suspected of having stolen goods contra. Sec. 430 C.C.

The learned Judge in the Court below found the first and third accused guilty on the first count and all four accused guilty on the third count. As regards the second count the learned Judge held that it would not lie as .. Being bad for duplicity consisting of a similar act to that of the first charge."

The first and third accused have appealed against their convictions on the 1st and 3rd counts and all four accused have appealed against their convictions on the 3rd count.

       The learned Judge believed the evidence of the complainant Petrus Epanya as to how he came to part with £200 and not havingseen or heard the witnesses we are not prepared to hold that the learned Judge was wrong in believing the complainant.

Accepting the complainant's evidence however we find that it discloses nothing which could be described as a .. fraudulent trick or device", and we think that the learned Judge was wrong in convicting the 1st and 3rd accused under section 421 of the Criminal ,Code. It is however in our opinion clear that there was a .. false pretence" as defined in section 418 of the Criminal Code by the 1st accused and that by that false pretence the 1st and,3rd accused with intent to defraud did induce the complainant to deliver to them the sum of £200.

On the evidence of the complainant it is we think clear that the 1st and 3rd accused were guilty of an offence under section 419 of the Criminal Code.

We are also of opinion that the learned Judge, with the charge of stealing before him, ought to have treated it as an alternative charge to the first count and not as bad for duplicity. So treating the second count the learned Judge on the second count, believing as he did the evidence of the complainant could-and in our opinion should-have found the 1st and 3rd accused guilty of an offence under section 419. Section 59 (2) of the Criminal Procedure Ordinance in our opinion gave the Judge power to do this.

It follows that under section 11 (2) of the West African Court of Appeal Ordinance this Court can-and in our opinion-should, instead of allowing the appeals of the 1st and 3m accused, substitute for the verdict found by the Judge on the 1st count as against 1st and 3rd accused a verdict under the second count of guilty of an offence under section 419 of the Criminal Code. We do accordingly substitute that verdict. Having so substituted that verdict we pass on the 1st accused a sentence of eighteen months Imprisonment with Hard Labour and on the 3rd accused a sentence of two years Imprisonment with Hard Labour.

As regards the third count we consider that the 1st and 3rd accused having been found guilty of the principal offence of obtaining the £200 by false pretences ought 'not to be convicted also under section 430. I t is in our opinion wrong having found it proved that the 1st and 3rd accused did in fact obtain the money and goods by fraudulent false pretence to go on and find them guilty of having in their possession part of the same money which might be reasonably suspected of having been unlawfully obtained.

The conviction and sentences of the 1st and 3rd accused on the 3rd count for that reason are quashed.

This consideration does not of course apply to the convictions and sentences of the 2nd and 4th accused on the 3rd count. There was certainly evidence which if believed would justify the conviction of the 2nd and 4th accused on the 3rd count and their appeals are dismissed.