pg 142
Appeal Court, 6th Nov.,
1941.Appeal
from convictions and sentences
in Supreme Court.
Criminal law and
procedure--Charges of Stealing,
contra. section 390
(4)
and of Receiving stolen
property, contra. section 427 of
the Criminal
Code-Misdirection--Failure to
warn jury as to statements made
by co-accused-Guilty knowledge
Possession 01' control of stolen
property-Material witness
Redundant verdict and sentence.
The first three appellants were
charged with offences against
section. 413 (1) and 390 (4)
(c)
and also against section 427 and
receiving stolen property, which
consisted of a number of cases
of gin stolen from a Customs
Warehouse. The first three
appellants were convicted of
stealing and receiving, and the
last three appellants were found
guilty of receiving. The
principal ground of appeal
raised by all appellants was
that the jury was not warned
that statements made by
co-accused and their evidence in
Court should be regarded as that
of accomplices requiring
corroboration.
Held: (1) that neither the
statements 1101' the evidence
contained anything material
which could be regarded as
prejudicing the others and the
rule as to corroboration applies
only to witnesses called for the
prosecution:
(2) . there were circumstances
from which guilt~· knowledge
could be inferred by the jury
and it could not be said that
their verdict was wrong:
(3) assistance in disposing of
stolen property is expressly
stated in section 427 to be
sufficient proof of receiving:
(4) by virtue of section 8 (2)
of the Criminal! Code a wife
could only be called on the
application of her husband:
(5) the first three appellants
having been found guilty on the
first count of Stealing, there
was no need to take a verdict on
the second:
Evidence supported either count.
Verdicts and sentences of first
three appellants under section
390 (4)
(c)
quashed, their convictions and
sentences on charge of receiving
upheld and the sentences of
other three appellants reduced.
Cases cited:-
R. v. Barnes and Richards
27 C.A.R. 154.
R.
v. Mallam Mahamado
W.A.C.A. (unreported) 23rd
March, 1940.
Akerele
for 1st Appellant-ADEBOWALE.
Sir William Geary
and
Alakija
for 4th Appellant-JAFFAR
.
A.
O.
Thomas
for 2nd Appellant-V Aseo DA GAMA.
Cole
and
Alakija
for 5th Appellant-GFELLER.
Moore
and
Taylor
for 6th Appellant-SAIDI.
3rd Appellant (Apena) not
represented.
Reece
for Crown.
The following joint judgment was
delivered:-
BUTLER LLOYD, ACTING C.J.,
BROOKE AND JEFFREYS, JJ.
'fhe appellants in this case
were tried at the Lagos June
Assizes before Mr Justice Baker
and a jury as to the first three
of them on two counts alleging
offences against sections 413
(1) and 390 (4)
(c)
and against section 427 of the
'Criminal Code. The last three
appellants were charged with an
offence against the latter
section only. A large number of
witnesses was called and the
trial lasted for over a
fortnight. All the appellants
with the exception of No. 5 who
made an unsworn statement gave
evidence on oath. 'At the
conclusion of the trial the
jury, after a retirement lasting
more than three hours, found the
first three appellants guilty of
larceny and receiving, another
person accused jointly with them
being acquitted. The jury also
found the last three appellants
guilty of receiving. Against
these convictions all have now
appealed and in every case, the
grounds of appeal in slightly
varying terms allege
misdirection by the learned
trial Judge.
The record contains what is
obviously merely a summary of
the learned trial Judge's
summing-up and we desire to
emphasise once again the
necessity for shorthand
reporting in all Criminal trials
in the Supreme Court.,
In a recent speech Lord Hewart
then Lord Chief Justice referred
to this matter in the following
terms:-
" Those who know anything of the
work of the Court of " Criminal
Appeal are well aware that it
simply could not " exist without
the help of a competent
shorthand writer on " every
trial on indictment."
And yet so long as the present
state of affairs exists it is
precisely this impossibility
with which we are faced every
time this Court sits as a Court
of Criminal Appeal.
The principal ground of
misdirection raised by all the
grounds of appeal is that the
jury were not warned that the
statements made by each
appellant's co-accused and their
evidence in the box should be
regarded as the evidence of
accomplices and not acted upon
unless sufficiently
corroborated. We find, however,
upon a
pg143
most careful scrutiny that
neither the statements nor the
evidence Contained anything
material which could possibly be
regarded as prejudicing the
others. The best proof of this
is that the admission of the
statements was not objected to
and that the co-accused
themselves were not
cross-examined by the others
except as to one or two minor
details on the evidence they had
given.
It is indeed remarkable how
closely their stories tallied
with each other. This being so
there can be no substance in the
complaint that the jury were not
warned that this evidence
required corroboration.
Even had we thought otherwise,
the recent case of
Rex v.
Barnes
and
Richards
C.A.R. 27 p. 154 affords a
complete answer to this ground
of appeal, the head-note in that
case reads:-
" Where prisoners are tried
jointly and one of them gives "
evidence on his own behalf
incriminating a co-prisoner, the
" prisoner who has given the
incriminating evidence is not "
placed in the position of an
accomplice, nor does the rule "
of practice with regard to the
corroboration of an accomplice
"apply to such a case. The rule
applies only to witnesses "
called for the prosecution."
We are unable to find any
substance in such others of the
grounds of appeal as alleged
misdirection or non-direction.
On behalf of the three
appellants who were convicted of
receiving it was urged that
there was insufficient evidence
to support a finding of guilty
knowledge. As to this we are
satisfied that there was
evidence to support this part of
the jury's finding. The gin was
sold at approximately ten per
cent below the fixed price at
the time. It was delivered in
keroaene cases instead of the
original cases in which it was
imported. The negotiations for
its sale were extremely tortuous
and payment was made to a person
who on the face of it had no
interest in the gin. The
quantity sold was unusually
large at a time when gin was
already becoming scarce. All
these were circumstances which
the jury were entitled to
consider in coming to their
verdict, and it is quite
impossible to say that that
verdict was wrong. On behalf of
the sixth appellant it was
argued that he was entitled to
be acquitted in the absence of
evidence, that the gin was ever
in his possession or control.
But it would appear that his
counsel had not taken the
trouble to read the section
under which his client was
convicted, since in addressing
us he made the point that all he
had done was to assist in
disposing of the gin, which is
expressly stated by the section
to be sufficient proof of
receiving.
On behalf of the fourth
appellant it was argued that a
material witness was not called
by the prosecution. The witness
referred to was the wife of the
fifth appellant and it is a
sufficient answer
pg144
to this ground of appeal
to point out that by virtue of
section 8 (2) of the Criminal
Code this witness could only
have been called upon the
application of her husband and
that no such application was
made at the trial.
One matter only remains to be
dealt with, the question of the
(redundant) verdicts and
sentences in the case of the
first three appellants. The
record is not quite clear on the
point except in the case of the
third appellant who was the
fourth accused at the trial but
we think it must be assumed in
favour of the first two
appellants also that the jury
found them guilty of larceny
contra. section 390 (4)
(c)
and not of warehouse breaking
contra. section 413 (1) as they
were certainly entitled to do.
The appellants having been found
guilty upon the first count
there was no need to take a
verdict on the second. The case
is precisely similar to a case
of
Rea: v.
M'alla7n Maha7nado
in which the judgment of this
Court was given on the 23rd of
March, 1940, where it was laid
down that the facts proved in
both counts being identical the
charges were really alternative
and it was wrong to convict the
appellant on both. Here the
evidence would in our opinion
have supported conviction on
either count but we think that
the appellants are entitled to
the benefit of such ambiguity as
may exist and the verdicts and
sentences under section 390 (4)
(c)
should be quashed.
In all other respects these
appeals are dismissed.
APPEALS AGAINST SENTENCES.
By the quashing of the
conviction on the first count in
the case of the first three
appellants, as a result of the
double conviction on both the
counts of stealing and
receiving, the sentences passed
on these appellants were reduced
born four to three years, and it
is considered that no ground for
any further reduction has been
made out. In the case of the
last three appellants we
consider that their part being
only a subsidiary one, they
would be adequately punished by
a sentence of eighteen months
I.H.L., in the case of each of
them. The appeals of the first
three appellants against
sentence are dismissed and the
sentences of three years
imprisonment, hard labour, in
the case of each of the other
three appellants are quashed and
a sentence of eighteen months
imprisonment, hard labour, in
the case of each of them is
passed.
All sentences Will run from the
date of conviction viz:
July
3rd, 1941.
pg 146