v

           KOFI BOATENG ALIAS EBENEZER ALFRED  BOATENG      Appellant                   

 pg 109

Conviction for receiving-Another accused pleaded Guilty to the Stealing-Question of nexus between stolen articles and those found in accused's possession-No identification of articles­ sections 27, 29 and 43 of Criminal Code-Was evidence of circumstances of receiving sufficient proof that goods were stolen without other evidence of theft?-

Held: Evidence sufficient, appeal di8Jlli88ed.

There is no need to set out, the facts.

Cases referred to: '-

Re.T v. Sbarra (13 Cr. App. Rep. 118). Re.T v. /!'uschillo (27 Cr .. App. Rep. 193).

A. Ridehalgh for Crown.

A. S. E. Brown for Appellant.

The following joint judgment was delivered:-

KINGDON, C. J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C. J., SIERRA LEONE.

In this case the Appellant was charged in the Supreme Court at the Kumasi AS8i~es with three other men on two counts, the first. being ", Burglary" contrary to section 291 of the Criminal Code, of which the particulars given were that the four men in the night unlawfully broke the dwelling, house of H. J.' N. Chapman for .the purpose of stealing, and the second "Stealing from a dwelling house" contrary to section 271 (2) of the Criminal Code, of which the particulars given were that the four men stole from or in the dwelling house of H. J. N. Chapman a number of articles including one bottle of whisky and one tin skipper sardines the property of the said H. J. N. Chapman. In the Court below the appel41nt was the third defendant. The first defendant pleaded " Guilty" to both counts, the other three including the appellant, " Not Guilty ". The appellant was found " Not Guilty " on the first and second counts but" Guilty of receiving the articles found " in his possession knowing them to have been stolen property ", the articles in question being one bottle of whisky and one tin pg 110 skipper sardines. He was sentenced to two years Imprisonment Hard Labour. Against that conviction he has appealed to thi~ Court on the ground of error in law and has given four heads of alleged error, but only the first two need be considered; they are:-

" (a) It was not proved that the bottle of Black and White Whisky " and a tin of Skipper Sardines alleged to have been found on the "appellant were stolen from the complainant. Neither the "complainant nor his witnesses gave evidence that Skipper Sardines "were stolen from the Bungalow and- the bottle of Black and White " Whisky was not identified as the whisky alleged to be stolen.

" (b) The appellant was not charged with receiving on the Information and the evidence as adduced do not support the conviction. ,i There was no evidence showing j(' nexus between the whisky which the "1st accused by his plea admitted stealing and that found in the " possession of the appellant." .

In regard to the first sentence of (11) the conviction for " receiving" on a charge of stealing is in order by virtue of the provisions of section 143 of the Criminal procedure Ordinance (Chapter 10) provided that the evidence is sufficient to support it.

The evidence in regard to the two articles in respect of whicJ1 the appellant was convicted must be considered separately.

First as to the bottle of whisky. It was proved that a bottle of Black and White Whisky was stolen from Mr Chapman's store and that a bottle of Black and white whisky was found in the appellant's house. Mr Chapman's steward-boy, Yaw Badu, professed to identify the bottle found in appellant's house as the stolen bottle by its crumpled label. But in this Court counsel for the Crown admitted that the learned- trial 'Judge rejected this identification, and on our referring to the Judge, he, in effect, Confirms this. We have, therefore, carefully examined the evidence to ascertain if there is any other evidence identifying the bottle of whisky found as the bottle stolen, and we find that there is none.

As to the tin of sardines, although it was proved that Mr Chapman's store contained tins of sardines, it was not proved that any of them were stolen. Therefore no question of identification -guises. It. is true that the first defendant pleaded " Guilty" to .stealing, inter alia, one tin of skipper sardines, but such admission is not evidence against the appellant to establish the theft.

It is clear, therefore, that neither of the articles for the receiving of which the appellant was convicted was identified as articles stolen from Mr Chapman's store. But the conviction, and the Crown case to uphold it, do not depend on such identification. In his report the learned trial Judge has recorded:-

" I held, as I explained in detail at the time, that the necessary~ "proof according to the provisions of sections 27, 29 and 43 of the II Criminal Code, that the bottle of whisky found in appellant's "possession was appropriate dishonestly or by any crime, was "established by the peculiar circumstances of the case, bearing in mind " the principle that the circumstances in which the defendant' received' " the goods may, of themselves, be sufficient proof that the goods were " stolen and that it is not a rule of law that there must be other evidence and counsel for the Crown in this Court has submitted to us that and apart from identification there was evidence to be considered by the Judge upon which he could properly convict, and that all the .. surrounding circumstances must be pg 111 looked at. 

As to this it is undoubtedly good law that on a charge of dishonestly receiving property knowing it to have been stolen, it is not essential to prove the identity of the property with property the proceeds of a particular theft, and that the necessary guilty knowledge may be inferred from all the circumstances of the case. (Rex v. Sbarra, 13 Cr. App. Rep. 118; Rex v. Fuschillo, 27 Cr. App. Rep. 193). And Fuschillo's case seems to indicate that it is not necessary that the only possible inference to be drawn from the facts should be that the property was stolen property to the knowledge of the defendant, but that where that inference is one of several which can possibly be made it is for the jury (if the case was tried with a jury) to draw the inference which appears to them to be correct and give a verdict accordingly. In the present case there was no jury and so the duty of drawing an inference fell upon the trial Judge. The only question for this Court is whether or not there was evidence upon which he could properly draw the inference which he did, viz. that the bottle of whisky and the tin of sardines were stolen property and that third defendant knew it. The evidence upon which the Judge could base the necessary inference was:-

(a) The respective places in which the bottle of whisky and the tin of sardines were found in the defendant's house-- . the whisky under one of the petrol cases on which a man named Martin had been sleeping, the sardines on a window sill where there were many books " after the books were removed". 'l'he suggestion of the prosecution is that both the whisky and the sardines were hidden; if that suggestion is accepted it can be construed as evidence of guilty knowledge.

(b) Sub-Inspector of Police Ofori Addo gave evidence that when the defendant was arrnted, cautioned and asked to account for the whisky he said, " I bought it a month ago " from the U .A.C. store No.2 at Sunyani-I bought it for " the ceremony because I was going to marry a girl", whereas the following morning he said, " I was afraid last " night and so I said I bought the whisky from the U .A.C. " store No.2; that is not true. I picked it up at the place where I found the sardines". If this evidence is pg 112 believed, it shows that appellant gave two different versions of how he came by the whisky; one must be untrue; and this of itself affords evidence of guilty knowledge ..

(c) The defendant called no evidence to support his statement that he bought the whisky from the United Africa Company, which if it were true should have been easy of corroboration. If, therefore, the other alternative is accepted namely that he found the whisky at the same place as the sardines (in a bush path), the circumstances of the acquisition may be regarded as so suspicious as to imply guilty knowledge.

(d) The same applies to the tin of sardines which defendant says " I found in the road ".

In the aggregate this may not amount to very much, but it is certainly sufficient, and that being so we are unable to say that the learned trial Judge was wrong in his finding that the appellant was guilty of receiving these articles knowing them to have been stolen property.

'The appeal is dismissed.