KANJARGA v. THE STATE [1965] GLR 479

DIVISION: SUPREME COURT

DATE: 21 JUNE 1965

BEFORE: OLLENNU, BRUCE-LYLE AND SIRIBOE JJ.S.C.

CASES REFERRED TO

(1) R. v. Jennings (1912) 7 Cr.App.R. 242, C.C.A.

(2) R. v. Dixon (1925) 19 Cr.App.R. 36, C.C.A.

(3) Gariba v. The State [1963] 2 G.L.R. 54, S.C.

NATURE OF PROCEEDINGS

APPEAL against conviction upon an indictment for unlawful entry, contrary to section 152 of the Criminal Code, 1960, and for stealing, contrary to section 124 of the Code. The facts of the case are fully set out in the judgment of Ollennu J.S.C.

COUNSEL

Heward-Mills for the appellant.

Gyeke-Dako, Senior State Attorney, for the respondent.

JUDGMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the judgment of the court. The appellant was tried upon an indictment which charged him with two counts: the first, unlawful entry, contrary to section 152 of the Criminal Code,

1960,1 the second, stealing the sum of £G3,211, contrary to section 124 of the Code. He was convicted on each of the two counts and sentenced to a term of five years’ imprisonment with hard labour on each count, sentences to run concurrently. The appellant was a steward boy to the complainant and had been in his service for some time before the theft. He was in the house in the morning of 15 June 1964, when the complainant left the house for work, but was not in when his master returned later in the day. On his return to the house, the complainant met the doors locked in the same condition that he had left them; but on entering the bedroom he discovered that three of the glass louvres of one of the windows of the bedroom had been broken leaving an opening in the window. He said that he looked for his money which he had kept in a drawer, but it was not there and so he made a report to the police who came and carried out investigations. It is doubtful whether the complainant noted the loss of his money before making the report to the police, because, according to the evidence he gave under cross-examination, and that given by the police, the drawer in which the money was kept was locked at the time police arrived on the scene, and the police had to force it open before the loss was discovered. The appellant never returned to the house after that date 15 June 1964; he was traced by the police, on 18 June 1964, to his hometown in the

Upper Region, where he was arrested together with the second prosecution witness.

The prosecution’s case depended upon circumstantial evidence, and upon direct evidence given by the second prosecution witness who said that the appellant confessed to him that he had stolen £G3,000 odd of his master’s money, and that he the second prosecution witness accompanied the appellant at his request to the Upper Region to enable him, the appellant, to dispose of the money, for which services, the appellant promised to reward him with an amount of £G200, but failed to honour his promise.

Learned counsel for the appellant argued five of the eight grounds of appeal filed, and made the following points:

(1) the trial judge failed properly and adequately to direct himself on the evidence of the second prosecution witness, who is an accomplice in the crime,

(2) the matters referred to by the learned judge as corroborative of the evidence of the second prosecution witness are not matters which the law can regard as corroboration, and

[p.482] of [1965] GLR 479 entered the room before he succeeded in committing the theft. Therefore, the senior state attorney submitted, the circumstantial evidence leads to the irresistible conclusion that the appellant made an unlawful entry into the room.

This submission made by the senior state attorney overlooks the following points: (1) upon the evidence, the money must have been in the room for some time, not specified by the prosecution before the date of the theft; (2) there is no evidence showing the last time that the first prosecution witness saw the money in the drawer, certainly there is no evidence that the money was in the drawer when he left the house that morning; consequently there is no evidence that the theft took place during the absence of the first prosecution witness from the house that day. The appellant entered the room from time to time for the purpose of performing his lawful duties therein as a steward boy to the complainant; he might well have discovered and stolen the money during the course of the performance of his lawful duties in the room. It was for that reason that the learned trial judge held that the presence of the finger prints of the appellant appearing on the glass louvres along with those of the complainant is not of any assistance to the case for the prosecution.

The elements of the offence of unlawful entry are contained in sections 152 and 153 of the Criminal

Code, 1960, which read as follows:

“152. Whoever unlawfully enters any building with the intention of committing a crime therein shall be guilty of second degree felony.

153. A person unlawfully enters a building if he enters otherwise than in his own right or by the consent of some other person able to give such consent for the purposes for which he enters.”

To constitute that offence, the entry must be made with a purpose or intent to commit a crime. It follows that in addition to proving entry, the prosecution, to succeed, must prove that intent to commit a crime in the premises existed at the time of entry and was the purpose for the making of the entry. Therefore if a person entered premises for a lawful purpose, i.e. to visit a friend, and while in the room he saw a diamond ring, which he coveted and pocketed, he could properly be convicted of theft of the diamond ring, but a conviction for unlawful entry with intent to steal would not accord with the law. Since it is probable upon the evidence, that the appellant might have committed the theft in the course of his lawful duties in the room, his conviction for unlawful entry is bad and must be quashed. In the result, the appeal against the conviction on count

[p.483] of [1965] GLR 479 one, i.e. unlawful entry, is allowed and the conviction is quashed, a judgment and verdict of acquittal is entered in respect thereof, and the appellant is acquitted and discharged on that count. But the appeal against the conviction on count two, i.e. stealing, is dismissed.

DECISION

Appeal dismissed on count two and allowed on count one.

S. K. D. -B.