Division: IN THE COURT OF APPEAL
Date: 29TH MAY, 1959.
Before: VAN LARE J.A. AS C.J., GRANVILLE SHARP J.A. AND
ACOLATSE J.
JUDGMENT OF GRANVILLE SHARP J.A.
Granville Sharp J.A., delivered the judgment of the Court:
(His lordship stated the facts, and proceeded:—)
Whatever may be the fact as to the purchase of cloth, it is perfectly clear that the story told by the first appellant in the presence of the second appellant as to the availability of money in her house was false. It was this falsehood that induced the victim of the appellants to consent to hand over to the first appellant the sum of £600 Bray’s consent was therefore void, for Section 16 (2) of the Criminal Code expressly provides: “A consent shall be void if it is obtained by means of deceit or duress.” Clearly therefore, in our opinion, at the moment when the woman took the money, she took it without the consent of the owner, and dishonestly appropriated it. The offence was one of stealing.
[p.240] of [1959] GLR 237
The District Magistrate, however, is recorded as finding that these two appellants were “not guilty of stealing, but guilty of fraud by false pretences”. In this the learned Judge of the Divisional Court supported him.
(His lordship read Section 39 of the Criminal Code and Section 154 of the Criminal Procedure Code, as reproduced in the headnote, and continued:—)
In our opinion, the combined effect of these two provisions is
(1) that if upon a charge of stealing it be found that the facts do not support such a charge, but do support a charge of fraud by false pretences, an accused person may be found guilty of such a charge by substitution although it formed no part of the indictment; but
(2) that if the facts do support a charge of stealing, it is upon that count, and that count alone, that an accused person must be dealt with and convicted, and if wrongly acquitted upon such a charge the same facts cannot be used in order to convict him on a substituted charge, particularly where it appears (as it does in the instant case) that the ownership of the money was not severed from the person who handed it to the accused by way only of a temporary loan.
The same reasoning would apply to Section 155 of the Criminal Procedure Code. A person wrongly acquitted on a charge of false pretences cannot on the same facts be convicted of stealing unless the facts support a charge.
The appellants ought in our opinion to have been convicted of stealing, as in R. v. Aickles (2 East P.C.675, C.C.R.). They were wrongly acquitted, and we cannot review this finding. We were of opinion that the facts did not support a charge of fraud by false pretences.
DECISION
We therefore felt impelled to allow the appeal, and the appellant before the Court was ordered to be discharged.
