Division: IN THE COURT OF APPEAL
Date: 1ST MAY, 1959.
Before: VAN LARE J.A. AS C.J., ACOLATSE J. AND OLLENNU J.
COUNSEL
Owusu for appellant. There was no evidence of conspiracy to steal money. If at all, conspiracy was inferred from the act of stealing. On the authorities, such a charge by inference is undesirable.
Cross for respondent (Crown). The Crown concedes the point.
Owusu (continuing). As to the charges of theft, the facts that the Treasurer stole his master’s property and gave it to Dimbie in exchange for the latter’s cheque, would not make Dimbie guilty of stealing. Thus where two men had stolen property from a warehouse and put it in the street 30 yards away, and then summoned a carter whom they told of the theft and who helped them take away the property, the carter was not guilty of the theft (R. v. King (168 E.R. 830)).
[p.204] of [1959] GLR 202
The consent of the Treasurer was obtained without any trick. For this reason, R. v. Stewart ((1845) 1 Cox 174) is inapplicable, for that was a case of larceny by a trick, and indeed the trial-Magistrate seems to have thought that it was a larceny by a trick that he was trying. The Magistrate misdirected himself.
Admittedly, Dimbie did obtain money belonging to the Council, but this case is not on all fours with R. v. Williams (37 Cr. App. R. 71), for in the instant case Dimbie sets up a claim of right. It is not clear that the Council would not have consented to the appropriation—the evidence of the 1st accused (the Council’s Treasurer) made it quite clear that the latter thought such consent possible, for he says he thought it had actually been given. And a member of the Council (Kwata Bakuli) said in evidence that if a Councillor made an application to the Council for a loan, the Council would consider it.
Cross not called on to argue.
JUDGMENT OF VAN LARE AG. C.J.
This is an appeal from the decision of Smith J. dismissing an appeal against conviction by the District Magistrate, sitting at Tamale, for the offences of conspiracy and stealing. The appellant was charged and convicted, together with another person who has not appealed, and with him we are not concerned.
There were three charges of conspiracy, and three charges of stealing. Apart from the evidence that both men together stole the sum specified in each of the three counts of stealing on three different dates there was no specific evidence to establish that there was any anterior conspiracy to commit the offence of stealing. Conspiracy to commit a criminal offence is by itself a criminal offence, whether the offence contemplated is or is not committed. It follows, therefore, that where there is a specific charge of conspiracy, that is to say in addition to the offence itself, there must be some evidence directed and confined to the facts which constitute or are concerned with the conspiracy. It is not so in this case.
Learned Crown Counsel for the respondent conceded that it is undesirable to add a count for conspiracy to an indictment charging a specific substantive offence in cases where it is clear that the evidence to be submitted for consideration is nothing more than evidence of the actual commission of the substantive offence. In the case of R. v. Boulton ((1871) 12 Cox at p.93) Cockburn C.J. in summing up had this to say:
“I am clearly of the opinion that where the proof intended to be submitted to a jury is proof of the actual commission of crime, it is not the proper course to charge the parties with conspiring to commit it, for that course operates, it is manifest, unfairly and unjustly against the parties accused.”
[p.205] of [1959] GLR 202
Although we are aware that it often happens that conspiracy to do such a thing as stealing may be inferred from the evidence establishing theft, nevertheless in giving the best consideration to this case we do not think there was evidence upon which any of the three conspiracy charges as separate and specific offences can be supported. We would therefore allow the appeal with respect to the conspiracy charges, that is to say, counts 1, 3 and 5.
The position is, however, different with respect to counts 2, 4 and 6, which charged the appellant with stealing.
(His lordship stated the facts, and proceeded:—)
In our view, this is strong evidence from which dishonesty may well be inferred, and which implicates the appellant on the charges of stealing preferred against him.
The short question in this appeal is whether the appellant’s appropriation was dishonest. Section 27 of the Criminal Code defines stealing as follows:
“A person is guilty of stealing if he dishonestly appropriates a thing of which he is not the owner.”
Explanation as to dishonest appropriation is provided by section 29 (1) of the same Code as follows: “An appropriation of a thing is dishonest if it is made by a person without claim of right, and with a knowledge or belief that the appropriation is without the consent of some person for whom he is trustee or who is owner of the thing, as the case may be, or that the appropriation would, if known to any such person, be without his consent.”
Sub-section 2 of Section 32 deals with acts which amount to appropriation, and includes obtaining or dealing with a thing with a purpose that some one may be deprived of the benefit of his ownership, or of the benefit of his right or interest in the thing or in its value, etc. A purpose of deprival, according to sub-section 3 of this section, can be constituted by a purpose of appropriating the thing temporarily. Sub-section 4 is as follows:—
“It is immaterial whether the act by which a thing is taken, obtained, or dealt with be or be not a trespass or a conversion, or be or be not in any manner unlawful otherwise than by reason of its being done with a purpose of dishonest appropriation; and it is immaterial whether before or at the time of doing such act, the accused person had or had not any possession custody, or control of the thing.”
In this case the appropriation of the money which is the subject matter of each of the charges is not denied, but it is submitted that the appellant honestly believed that he had a claim of right, and that
[p.206] of [1959] GLR 202
he acted in good faith. We are not in any way impressed by the arguments advanced before us. We can see nothing on which such a claim of right can be grounded. The appellant had no such claim whatsoever, either in law or in fact, and such an assumption (in our view) could only be dishonest.
The appellant knew that the money he obtained on each occasion was the property of the Tumu District Council; he knew that money could not be obtained from the Treasurer without the consent of the authorising officer, and only on a voucher properly presented. If he had been acting honestly he would have informed the authorising officer, or would have taken steps to get the Council’s approval or ratification. He did nothing of this sort, and kept silence upon the matter until the shortage was discovered. The evidence is not such as to support a belief that although he did not have a claim of right the Tumu District Council would not object to his obtaining the Council’s money in the way he did.
When he issued the cheques he had only a mere hope, and no certain expectation, that he would be able to repay. Under cross-examination the appellant deposed as follows:—
“I told the 2nd accused that I would notify him when there were sufficient funds with the bank before he should present the cheques. If I did not notify him then he should not present the cheques. I did not know when my money was coming.”
He also admitted on oath that it was not proper that he should have been paid the money without having payment vouchers passed. If impropriety in such circumstances does not amount to dishonesty, we do not know what could.
When asked in cross-examination, “Why did you not ask the permission of the owner of the money?” the appellant replied, “I did not ask for permission of the Tumu District Council.” The appellant then shattered any claim to honesty when he failed to reply, or could not reply, to the fatal question, “Why, if you knew you were transacting an honest day-to-day civil transaction?”
It has been argued that the case of R. v. Williams (37 Cr. App. R. 71) was wrongly applied by the Judge from whom this appeal is taken. We are of the opinion that that case cannot be even remotely distinguished from the present case, in which the appellant obtained and used for his own purposes some one else’s money (that is money belonging to the Tumu District Council) and he had merely a hope or expectation that the money might be refunded in the uncertain future, if and when he had funds in the bank to meet the undated cheques drawn by him. If anything, we are of the
[p.207] of [1959] GLR 202
opinion that the present case is worse than the Williams case, where it was held that a mere hope, and no certain expectation, that the prisoner will repay money in the future does not amount to a defence to a charge of larceny, but only goes to mitigation.
For the reasons given we dismissed the appeal, as there was enough evidence to support the conviction on the stealing charges. In the result the appeal is allowed on counts 1, 2 and 3, and dismissed on counts 2, 4 and 6.
DECISION
There is no appeal against sentences, which were concurrent on all the counts; consequently, although the appeal has been allowed on the conspiracy charges the sentences are not affected, because the conviction on the stealing charges is upheld.
