KRAMO WALA vs. THE REPUBLIC [1973] 1 GLR 287

CASES REFERRED TO

(1) R. v. Thurborn (1849) 1 Den. 387; 2 Car. & Kir. 831; T. & M. 67; 18 L.J.M.C. 140; 13 J.P. 459; 13 Jur. 499; sub nom. R. v. Wood 4 New Mag.Cas. 27; 3 New Sess.Cas. 581; 13 L.T. (o.s.) 548; 3 Cox C.C. 453, C.C.R.

(2) R. v. Glyde (1868) L.R. 1 C.C.R. 139; 37 L.J.M.C. 107; 18 L.T. 613; 32 J. P. 484; 16 W.R. 1174;

11 Cox C.C. 103, C.C.R.

(3) R. v. Knight (1871) 25 L.T. 508; 36 J.P. 4; 20 W.R. 122; 12 Cox C.C. 102, C.C.R.

(4) R. v. Moore (1861) Le. & Ca. 1; 30 L.J.M.C. 77; 3 L.T. 710; 25 J.P. 132; 7 Jur. (N.S.) 172; 9 W.R.

276; 8 Cox C.C. 416, C.C.R.

(5) R. v. Mortimer (1908) 99 L.T. 204; 72 J.P. 349; 24 T.L.R. 745; 21 Cox C.C. 677; 1 Cr.App.R. 20, C.C.A.

NATURE OF PROCEEDINGS

APPEAL against conviction and sentence for stealing lost property contrary to section 127 of Act 29. The facts are fully set out in the judgment.

COUNSEL

Korsa for the appellant.

Miss Sefa Boakye for the Republic.

JUDGMENT OF OWUSU-ADDO J.

On 21 February 1972 the appellant who had been charged with stealing was convicted by a Kumasi circuit court and was sentenced to two years’ imprisonment with hard labour. The case for the prosecution was briefly this: the room of Abudulai Adam, the first prosecution witness, was broken into during the night of 8 February 1972 when he had gone to visit his brother and his wireless set, wrist watch and accordion were stolen. On the following day at about 4 p.m., he went to a nearby shop to buy cigarettes where he saw the appellant playing his missing accordion. He asked the appellant how he came by the accordion and he replied that he had picked it up from the ground. He therefore invited the appellant to the Manhyia Police Station. The appellant having been charged with stealing the first prosecution witness’s missing articles made a statement, exhibit A, to the effect that he was going to a public lavatory at Ashanti New Town at about 5.30 a.m. on 9 February 1972, when he saw the accordion lying on the ground. He therefore picked it up and took it to his brother’s shop. He denied having stolen it from the first prosecution witness’s room. In his defence he relied on his statement, exhibit A.

Against his conviction and sentence the appellant has appealed to this court relying on the additional grounds of appeal filed on his behalf in the following terms:

[p.289] of [1973] 1 GLR 287

“(1) The learned circuit court judge misdirected himself in law in convicting the accused when he stated that, the law is that when a person picks up a thing knowing it to belong to somebody and decides to keep it he has stolen it.

(2) The judgment is unjust and unreasonable having regard to evidence.”

In his argument the learned counsel for the appellant referred to the definition of stealing by finding as set out in section 127 of the Criminal Code, 1960 (Act 29), and emphasized that the facts adduced by the prosecution failed to establish or prove the offence created by that section. Counsel further expounded the law relating to stealing by finding as decided in the cases of R. v. Thurborn (1849) 1 Den. 387, C.C.R.; R. v. Glyde (1868) 11 Cox C.C. 103, C.C.R. and R. v. Knight (1871) 12 Cox C.C. 102, C.C.R. The learned state attorney however urged that the case against the appellant falls under section 127 (b) of the Criminal Code, 1960, and explained that she was dwelling her submission on the appellant’s own admission made to the effect that he knew that the accordion belonged to someone in the area and for that matter he took it. But neither did he make any effort to find the owner nor tell “the big man” in their area about the accordion. She cited the cases of R. v. Moore (1861) 8 Cox C.C. 416, C.C.R. and R. v. Mortimer (1908) 1 Cr.App.R. 20, C.C.A. to support her submission.

The provisions of section 127 of the Criminal Code are set out hereunder:

“127. A person who appropriates a thing which appears to have been lost by another is not guilty of stealing it, unless⎯ (a) at the time of appropriating it, he knows who is the owner of the thing or by whom it has been lost; or (b) the character or situation of the thing, or the marks upon it, or any other circumstances is or are

such as to indicate the owner of the thing or the person by whom it has been lost; or

(c) the character or situation of the thing, or the marks upon it, or any other circumstances is or are such as that the person who has lost the thing appears likely to be able to recover it by reasonable search and enquiry, if it were not removed or concealed by any other person.”

It is very clear from the provisions of section 127 that one of the three conditions laid down must be proved before a person can rightly be found guilty of stealing by finding. First, the knowledge of the owner or the loser of the accordion by the appellant at the time of appropriation is a necessary ingredient in the offence. Failing to prove the requisite knowledge, the prosecution must either prove that there were marks upon the accordion by which the owner could have been traced or that there were means of knowing the owner or the loser, and the appellant instead of restoring it, appropriated it. Or lastly, that having regard to

[p.290] of [1973] 1 GLR 287

the character of the accordion or the circumstances in which it was found, the owner, that is the first prosecution witness, could have recovered it by reasonable inquiry if the appellant had not picked it up and taken it to his brother’s shop.

The contention of the learned state attorney is that the facts of this case offend section 127 (b) of the Criminal Code. But I think the proper question to ask in the circumstances of this case is not whether the appellant could have found the owner but whether he believed that he could have found the owner: see R. v. Glyde (supra). In his rather brief judgment the learned circuit judge found the appellant guilty of stealing and stated thus:

“The accused says he found the accordion on the ground. He was alone. He took it knowing that it was for somebody living in the area. When cross-examined he says he did not tell the big man living in his area about it. The law is when a person picks up a thing knowing it to belong to somebody and decides to keep it he has stolen it.”

With the greatest respect to the learned judge, he grossly erred in his approach to the law relating to stealing by finding. The correct proposition of the law is that if a man finds goods that have actually been lost or are reasonably suspected by him to have been lost, and appropriates them really believing when he takes them that the owner cannot be found, it is not stealing; but if he takes them with the like intent and reasonably believing that the owner can be found, he commits the offence of stealing: see R. v. Thurborn (supra) approved in R. v. Mortimer (supra).

As I have already pointed out the belief by the appellant at the time of appropriation that he could find the owner is a very necessary ingredient of the offence. But there is no evidence on the record to show that the appellant at the time he picked up the accordion knew or believed he could ascertain who the owner was. As the rule of law, founded on justice and reason is that actus non facit reum, nisi mens sit rea, the case of stealing cannot be committed unless it can be shown that at the time of finding he had the felonious intent to appropriate the thing to his own use even though he had reasonable ground for believing that the owner might be discovered and that reasonable belief may be the result of the previous knowledge, or may arise from the nature of the chattel found, or there being some mark upon it. But it is not sufficient that the finder may think that by taking pains the owner may be found. The first prosecution witness could have been probably traced by the appellant, perhaps, if he had made some effort in that regard, but strictly speaking, he was not bound to do that.

This is not one of the cases where an owner having left his property by mistake would naturally have returned for it when he realised that it was missing. There was no evidence that the appellant knew who the owner of the accordion was at the time he found it. The circumstances [p.291] of [1973] 1 GLR 287 were such that the first prosecution witness could not by reasonable search and inquiry have found it if the appellant had not picked it up. For these reasons, I allow the appeal and quash the conviction and sentence of two years imposed on the appellant. The appellant is acquitted and discharged. DECISION Appeal allowed.

Appellant acquitted and discharged.

S. E. K