Lagos,
28th October, 1936.Appeal
against Conviction by High
Court
Charge of attempted rape
contra
section
359
Criminal Code-Accused acquitted
of that offence but convicted of
indecent assault
contra
section
360
Criminal Code, section
58 (1)
of the Criminal Procedure
Ordinance being invoked to
justify such conviction.
Held: The charge of attempted
rape is indivisible,
consequently part of it cannot
be proved and section 58 (1) of
the Criminal Procedure Ordinance
cannot be applied, and
conviction quashed.
The facts are sufficiently set
out in the judgment.
A. Kayode
for Appellant.
Ivor Brace
for Crown.
The following judgment was
delivered :KINGDON, C.J.,
NIGERIA.
Accused, who was charged with
attempted rape only, was found
not guilty of that offence but
guilty of indecent assault.
It has been contended on behalf
of the Crown that appellant,
although not actually charged
with the offence of indecent
assault, was rightly convicted
of that offence by reason of the
provisions of section 58 (1) of
the Criminal Procedure Ordinance
which is in the following terms
:-
" 58 (1) When a person is
charged with an offence, and
part of the charge is proved,
but the part which is proved
amounts to a different offence,
he may be convicted of the
offence which he is proved to
have committed, although he was
not charged with it."
I t is not open to doubt that
there was ample evidence on
which the Court below could come
to the conclusion that accused
had committed an indecent
assault if the acts in respect
of which accused was found
guilty of that offence can be
said to constitute part of the
offence of attempted rape.
It appears from the judgment
that the trial Judge was
satisfied that accused entered
the room of complainant
uninvited, took off his clothes
and expressed a desire to have
sexual connection with her and
actually caught hold of her.
It was contended that from this
finding it followed that part of
the charge of attempted rape has
been proved.
These acts clearly fall short of
an attempt to commit rape.
They are merely acts which
indicate that accused wanted to
have and had made preparation to
have connection with
complainant.
In the opinion of this Court the
charge of attempted rape is
indivisible and the acts found
by the Judge constitute at the
most preparation for an attempt
to have unlawful carnal
knowledge of the complainant and
it cannot therefore be said that
part of that charge has been
proved.
The conviction is quashed and it
is directed that a verdict of
acquittal be entered.
