Charge of burglary and stealing
from d1lJelling house-Acquitted
thereof but convicted of
receiving items not proved to be
proceeds of the burglary.
Held: Sentence too severe,
sentence quashed and lesser
sentence substituted.
There is no need to set out the
facts.
A. Ridehalgh
for Crown.
Appellant not present.
The following joint judgment Was
delivered:-
KINGDON, C.J., NIGERIA, PETRIDES,
C.J., GOLD COAST, GRAHAM: PAUL,
C.J., SIERRA LEONE.
In this case the appellant was
charged with burglary and
stealing from a dwelling house.
He was acquitted on those
charges but convicted of
receiving a bottle of whisky and
a tin of sardines knowing them
to have been stolen. But the
whisky and the sardines were not
proved to be the proceeds of the
burglary. That being so the
sentence of two years
imprisonment hard labour passed
by the learned trial Judge
appears to Us to be excessive.
The appeal is allowed, the
sentence passed at the trial is
quashed and in substitution
therefore the appellant is
sentenced to six months
imprisonment hard labour to run
from the 11th December, 1940,
provided that the time during
which the appellant has, pending
the determination of his appeal,
been specially treated as an
appellant shall not count as
part of the said term of
imprisonment.
pg 133
was whether by his silence the
appellant was accepting the
first accused's allegations as
true. If he was, his silence
could be treated as
corroboration if he was
not, it was no corroboration.
The learned trial Judge failed
to give the juror this
all-important' directions. He
very properly reminded them that
the appellant denied silence,
but on the question of
corroboration the only reference
is when he set out the Crown
case already quoted " Second
accused. said nothing in reply
though asked if he had "
anything to say. This was before
his formal arrest, and provides
"some corroboration of the story
of first accused." The jury must
almost certainly have been left
with the impression that the
mere fact of the appellant's
silence provided the necessary
corroboration, This, as has
already been pointed out; is an
erroneous conception of the law,
and the Judge's failure to
direct the jury adequately and
correctly upon this point
amounts, in our opinion, to
misdirection upon a vital point.
There are certain aspects of the
case which definitely suggest
that by his silence the
appellant was not intending to
accept the first accused's
statements as true. For instance
the evidence that he kept silent
throughout the journey might be
taken to indicate that his
silence was due to an obstinate
determination to take no part in
the proceedings and had no other
significance. This is a point
which should have been put to
the jury and left for their
consideration. We are quite
unable to say that if the jury
had been correctly directed upon
this question of corroboration
by silence, they would
inevitably have come to the same
conclusion as they did; on the
contrary we think their verdict
might well have been different
upon a proper direction. The
appeal is therefore allowed, the
conviction and sentence are
quashed, and it is directed that
a judgment and verdict of
acquittal be entered. '£he
Appellant is discharged.
pg132
