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Appeal
Court 15 January,
1936.
Appeal from Conviction
by High Court.
.
Slave dealing and child
stealing-Power of Appeal Court
under Section
11 (2)
of Ordinance No.
47
of
1933
to substitute verdict of guilty of
an offence not charged.
Held: Power will not be exercised
unless it is clear trial Judge
must have been
satisfied of facts which proved
appellant guilty of suggested
substituted offence.
There is no necessity to set out
the facts. Appellant in person.
A. R. W. Sayle
for Crown.
The following judgment was
delivered :KINGDON, C.J.,
NIGERIA.
In this case the appellant was
charged together with two women on
a first count with slave dealing
contra
section 369 (2) of the Criminal
Code, and on a second count with
child stealing
contra
section 371 (1) and (2) of the
Criminal Code.
The evidence for the prosecution,
if it had been believed by the
trial Judge, would have
established an offence under the
first count, but not under the
second. But the trial Judge
acquitted all three accused on the
first count and convicted them all
on the second, sentencing the
appellant to seven years I.H.L. On
the appeal the Crown has not
attempted to support the
conviction of the appellant on
count two. Nor in view of the
acquittal on count one is it
possible for this Court now to
substitute a conviction on that
count. The Crown does however ask
that the Court will exercise its
power under section 11 (2) of the
West African Court of Appeal
Ordinance, 1933, and substitute a
verdict of guilty of an offence
contra
section 365 of the Criminal Code
and sentence the appellant
accordingly. This Court could only
take such action if it appeared to
it that the trial Judge must have
been satisfied of facts which
proved the appellant guilty of an
offence
contra
section 365 of the Criminal Code.
The Court is not so satisfied and
consequently will not make the
substitution suggested. The appeal
is allowed. The conviction of the
appellant is quashed and he is
discharged. |
