Division: IN THE COURT OF APPEAL
Date: 15TH MAY, 1959.
Before: VAN LARE J.A. AS.C.J., ACOLASTE J. AND OLLENNU
COUNSEL Appellant in person.
Glasgow for respondent (Crown)
Appellant heard.
The Court calls on Glasgow to argue the following questions:
(1) Was not the charge bad for duplicity?
(2) Did not the Magistrate treat as facts matters which were not supported by the evidence?
(3) Was not the Magistrate’s decision influenced by a wrong inference from the literate accused’s use of a letter-writer to prepare a receipt ?
(4) Would the evidence, if believed, support the conviction for false pretences which the Judge substituted for the Magistrate’s conviction for theft ?
Glasgow. The Crown must answer the first three questions in the affirmative, and the fourth in the
negative. It therefore does not support the conviction.
[p.227] of [1959] GLR 225
JUDGMENT OF VAN LARE AG. C.J.
Van Lare Ag. C.J. he delivered the judgment of the Court:
We allowed this appeal at the last sitting, and now proceed to give our reasons. The appellant was convicted at the Magistrate’s Court, Kumasi, before Mr. Beckley, District Magistrate, upon a count charging him with the offence of stealing cash the sum of £45 10/-, the property of one Augustine Mensah ,contrary to section 287 (1) of the Criminal Code.
This count was bad for duplicity, for from the evidence at the trial there appear to have been allegations of two separate and distinct offences, and they have been charged in one count instead of being made the subject of two counts, as the law requires. It is very trite learning in criminal pleadings that no more than one offence may be charged in any one count. Section 108 of the Criminal Procedure Code provides as follows:
(His lordship read the section, and proceeded:—)
The cash alleged to have been stolen was made up of two separate and distinct sums, £G20 and £G25 10/- respectively, given to the appellant by the complainant on two different occasions. The evidence for the prosecution is that on a certain date, in view of what the complainant Augustine Mensah had heard from his son Kwame and also from another Mensah, the complainant left his money, a sum of £G20,. with the appellant, from whom he expected to buy a spraying machine. The appellant went away, promising to return with the machine and with a permit in order to effect the sale. He returned without it, saying that the permit was not ready. This was one exercise. At a later date, and on the strength of what the other Mensah had told him, the complainant gave a further sum of £G25 10/- to the appellant to make up the money for the purchase of the spraying machine. It was expected that the balance of the purchase price, in the sum of £G4 10/-, was to be paid on delivery of the spraying machine to complete the sale. It turned out that the sale had not been completed, as the complainant failed to make delivery. The matter was eventually reported to the Police, and in respect of these facts the appellant was charged with the offence of stealing.
The appellant, who has been unrepresented throughout, cannot be presumed to know the niceties of criminal pleadings, and he could not therefore be expected to object to the defective form of the charge preferred against him. The evidence was such that it might have been possible for the appellant to have been convicted in respect only of the sum of £G20, if it were believed that consent was obtained by stratagem or deceit, and/or acquitted on the other
[p.228] of [1959] GLR 225
count (or on both counts, if there had been two separate charges) in the absence of evidence from which dishonesty could be inferred. In the circumstances, therefore, it cannot be said that no prejudice or embarrassment was caused by the two alleged offences being charged in one count contrary to the requirements of the law.
In this case the appeal could succeed on this ground alone; but there were other grounds fatal to the conviction. It would appear that there was some embarrassment on the facts, and on the law applicable to them, in the minds of both the trial-Magistrate and the Judge of the Divisional Court, Kumasi, who dismissed an appeal against conviction by the Magistrate.
(His lordship referred to the judgment of the learned Judge as in the headnote, and proceeded:—)
We can do nothing about the setting aside by the learned Judge of the conviction before the Magistrate for stealing, for even if we thought that the facts were capable of supporting a conviction for stealing we are precluded from restoring the conviction. But we do not in fact think so, for upon the evidence it is not clear that the original receipt was tortious (or not wholly innocent) so as to turn the original receipt into a dishonest appropriation by a subsequent intention to appropriate because the appellant was unable to refund the money; or that appellant later tried to misrepresent the transaction as one of loan. “If at the time when property is received the receipt is innocent, the fact that the person who has taken the property subsequently changes his mind and misappropriates it does not render the taking either receiving or larceny” (R. v. Matthews (34 Cr. App. R. 55)).
With respect, we differ from the opinion of the learned Judge that the facts support a conviction for obtaining money by false pretences. In the first place, it is not clear that the appellant had in fact no spraying machine for sale; secondly, even if there was any misrepresentation that the appellant had a spraying machine for sale it was certainly not made by the appellant himself, but rather by the other person named Mensah. The evidence is clear that if any person induced the complainant to part with his moneys if it was not the appellant, but somebody else. In view of all these considerations the conviction for false pretences could not be permitted to stand.
In his judgment the Magistrate appeared to have imported facts which were not supported by the evidence, and he also drew certain faulty inferences from those facts which were established. Thus, in cross-examining the witness Mensah, the appellant made the mere suggestion that the witness was appellant’s “rival.” The Magistrate
[p.229] of [1959] GLR 225
in his judgment expanded this suggestion by alleging that the appellant had suggested that he had had a quarrel with this witness Mensah over a girl, and that the witness Mensah had framed up the case against him in order to get him (the appellant) out of the way. This appears to us, with due deference, to be an exercise of imagination on the part of the Magistrate.
So, too, the appellant’s case, while not denying the receipt of the moneys from the complainant, was that the transaction was a loan, and appellant produced a copy of an acknowledgment given by him to the complainant, in support of his defence. The Magistrate in rejecting the defendant’s case laid some stress on this acknowledgment, and stated as follows:
“I am not satisfied with the explanation given by the accused as to how he came by the money. Accused is literate, yet he did not prepare the Exhibit “1” (i.e. the acknowledgment) himself. Why he should go to a letter-writer to have a receipt prepared, I fail to see. Furthermore he made no attempt to repay money. I do not believe him.”
We, on the other hand, can easily appreciate why a literate person would rather not prepare such an acknowledgement himself for an illiterate person, for fear that it might be suggested that he took advantage of his illiterate debtor’s ignorance of the nature of the document. If made by a third party, a licensed letter-writer as in this case, more weight could and should be attached to the genuineness of an acknowledgement. We think, therefore, that the Magistrate erred in his inference, and that such a faulty inference must have coloured his decision.
DECISION
For the reasons given we allowed the appeal, and quashed the conviction appealed from. The appellant was accordingly acquitted and discharged.
