Appeal Court.
5th Jan., 1938.
Appeal
from conviction by High Court.
Taking of goods apparently
abandoned-Bona fide taker
thereof, cannot be convicted
of stealing.
Held: Appeal allowed, conviction
quashed, etc. There is no need
to set out the facts.
C. N. S. Pollard
for Crown. Appellant not
present.
The following joint judgment was
delivered:-
KINGDON, C.J., NIGERIA, BUTLER
LLOYD AND CAREY, JJ.
In this case the appellant, a
second class Prison Warder, was
convicted in the High Court
before an Acting Assistant Judge
sitting at Bamenda in the
Cameroons of stealing
twenty-nine old sheets of
corrugated iron, the property of
Government. We are satisfied
that the conviction is wrong
both technically and on the
merits. The appellant frankly
admits that he took and used for
himself, quite openly, some old
corrugated iron sheets which had
formed part of an old shed which
had been pulled down, these
sheets being left apparently
abandoned
1:n situ
whilst some described as the"
good zinc" were taken to the
prison yard. It was about four
years before his action was
queried, and then he was charged
with stealing these and other
sheets. He clearly established
his innocence in regard to the
other sheets, but was convicted
in respect of these old ones. We
think that he acted in good
faith, entirely innocently in
the
bona fide
and reasonable belief that the
old sheets had been abandoned by
the Government. In other words
there was no
men
rea
and the conviction is bad for
this reason on the merits. Apart
from this the trial Judge
misdirected himself in saying in
his summing up "the test of
stealing is: is the thing taken
yours." Under section 383 of the
Criminal Code the test is "Did
the accused fraudulently take
something capable of being
stolen?" It is well established
law that" things of which the
ownership has been abandoned are
not capable of being stolen"
(See
Archbold 29th edition page 535).
If there is any ground for
supposing that the accused may
have believed the article found
to have been abandoned by its
owner, the jury must be
carefully directed with regard
to the matter, since, if the
jury find that belief as a fact,
the accused is not guilty.
(See Rex v. White
23 Cox 190). The trial Judge
failed altogether to
direct his attention to this
question,
viz.
what the . v. accused may have
believed, and this failure
amounted to a further
misdirection.