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COMMISSIONER OF POLICE v. BELLO


  • appeal
  • 1961-11-13
  • SUPREME COURT
  • GLR 647-652
  • Print

SARKODEE-ADOO, J., ADUMUA-BOSSMAN AND CRABBE JJ.S.C.


Summary

Criminal law?-Stealing?-Larceny by a trick?-Whether stealing or only cheating.

Headnotes

On the 17th September, 1960, the complainant, an illiterate farmer, went to the appellant, a licensed letter-writer, and requested him to prepare a writ of summons and a statement of claim to be filed at the Circuit Court, Tamale. [p.648] According to the prosecution the appellant charged the sum of G3 10s. for the preparation of these documents, and in the presence of one witness this amount was promptly paid by the complainant to whom the appellant issued a receipt, exhibit B.The complainant's action in the circuit court failed on the ground that his papers had not been properly prepared. He was naturally disappointed and therefore he showed all his papers to someone who told him for the first time that his receipt showed that the appellant charged him only ten shillings for the preparation of the documents. Thereupon the complainant caused a letter to be written to the appellant demanding a refund of the sum of G3, but the appellant ignored this letter and consequently a report was made to the Superintendent of Police at Tamale.During the investigation into the complaint by the Superintendent the appellant at first said that he received only ten shillings from the complainant, but when he was confronted with the witness who was present at the payment of the sum of G3 10s. to him, the appellant produced the sum of G3 which he offered to the complainant. The superintendent informed the appellant that whether or not he paid back the money he would still be charged, as he later was. He was convicted and sentenced to four months imprisonment with hard labour, the trial circuit judge finding that the appellant had induced the complainant to pay him an extra G3 without his consent, and that the appropriation by the appellant of this amount constituted stealing, or in effect, larceny by a trick. On appeal to the Supreme Court,

Judgement

APPEAL against summary conviction for stealing in the Circuit Court, Tamale, by Judge Djabanor.

JUDGMENT OF CRABBE, J.S.C.

Crabbe, J.S.C. delivered the judgment of the court. [His lordship rehearsed the facts as set out in the headnote and continued:] The appellant obviously [p.649] had the penalty under the Illiterates Protection Ordinance1 in mind when he strenuously denied that he received the sum of G3 10s. from the complainant as remuneration for preparing the documents. He maintained that he charged only ten shillings for his services and issued a receipt, exhibit B, for that amount. We are, however, satisfied that there was ample evidence on record to sustain the allegation that the complainant paid the sum of G3 10s. to the appellant on the 17th September, 1960. But the crucial matter to determine was whether the appellant was guilty of stealing. The offence of stealing is defined in section 125 of the Criminal Code, 19602 as follows: ?"A person steals if he dishonestly appropriates a thing of which he is not the owner." In section 120 there is an explanation of what amounts to dishonest appropriation.

The learned circuit judge found as a fact that the appellant charged, and was paid G3 10s., but he had some difficulty in finding the appellant guilty as charged. In his judgment he said:

?"From one point of view it appears that since the accused is said to have charged the complainant G3 10s. and since the complainant paid this sum willingly accused could not be said to have appropriated the money without the complainant?'s consent, because in fact complainant agreed to the charge. From this point of view it looks as if in view of the receipt for ten shillings, the accused may have committed another offence?-not stealing.?"

Instead of acquitting and discharging the appellant on this view of the evidence the learned circuit judge proceeded to consider what he called ?"this other side of the question?". This involved a consideration of whether the complainant was made to part with the money by a trick in which case the consent of the complainant was unreal and the appellant could be convicted of stealing. The following passage from the judgment shows how the trial circuit judge considered the question:

?"But there is this other side of the question. If complainant was made to part with the money by a trick then the consent is nullified and the accused could be found guilty of stealing. What is the trick, if any, here? The accused told the complainant that the charge was G3 10s. knowing that it is in fact ten shillings. If the complainant knew the charge was ten shillings he would not have paid G3 10s. In fact as soon as he got to know he claimed the money back. To take another example. If the accused was working in partnership with another and he charged and was paid G3 10s. but gave a receipt for ten shillings the accused would be held liable for stealing the G3.

The trial circuit judge then concluded his judgment in these words:

?"It seems from the above that since the accused told the complainant that he had charged G3 10s. when in fact he charged (according to the receipt) ten shillings the accused had thereby induced him to pay G3 more without his consent. The appropriation by the accused of this amount therefore, amounts to stealing. I accordingly find the accused guilty of stealing G3 and convict him accordingly.?"

In effect the learned trial circuit judge appears to have found the appellant guilty of ?"larceny by a trick.?" But in Oppenheimer v. Frazer,3 Kennedy, L.J. said:

"The expression ?'larceny by a trick?' is not really a legal expression indicating [p.650] a distinct kind of larceny. It is merely a convenient, or perhaps it may be said, having regard to the questions which have been raised in this case, an inconvenient mode of describing certain cases of larceny in which goods have neither been taken by force nor clandestinely without the knowledge of the owner. The cases so described are none the less cases of stealing."

There can be no doubt in this case that the appellant knew that the charge of G3 10s. was in contravention of the Illiterates Protection Ordinance4 and it was solely for that reason that he issued a receipt for a lesser sum of ten shillings to the complainant. The complainant was not aware of his protection against unscrupulous letter-writers, but as soon as he became aware that he had been cheated he wrote to the appellant demanding a refund of the money he had paid for the preparation of the documents. But, as Alderson B., pointed out in R v. Stewart5 "If the owner of goods parts with the possession, he meaning to part also with the property, in consequence of a fraudulent representation of the party obtaining them, it is not larceny, but a mere cheat". In our view it is only a cheat all the same where the thing parted with is money.

We may refer with approval to the following useful definition by the learned editors of Cross and Jones, Cases on Criminal Law:

"The definition of larceny by a trick may therefore be formulated as follows:?-there is larceny by a trick, where the owner of goods, being induced thereto by a trick, voluntarily parts with the possession of the goods, but does not intend to pass the property in, or a power of disposition over them to the particular person with whom he is dealing, and the recipient has the animus furandia.?"

The essence of the offence of larceny by a trick is that the prisoner obtains only possession of the thing transferred to him by the owner, and not the property in that thing. But once it is established that the owner intended that the property shall also pass to the prisoner the offence of larceny by a trick does not arise.

In R. v. Russet6, A. L. Smith, J. said

"The question is whether the prisoner has been guilty of the offence of larceny by a trick or that of obtaining money by false pretences; it has been contended on his behalf that he could only have been convicted on an indictment charging the latter offence; but I cannot agree with that contention. The difference between the two offences is this: if possession only of money or goods is given, and the property is not intended to pass, that may be larceny by a trick; the reason being that there is a taking of the chattel by the thief against the will of the owner; but if possession is given and it is intended by the owner that the property shall also pass, that is not larceny by a trick, but may be false pretences, because in that case there is not taking, but a handing over of the chattel by the owner. This case therefore, comes to be one of fact, and we have to see whether there is evidence that, at the time the 8 was handed over, the prosecutor intended to pass to the prisoner the property in that sum, as well as to give possession. I need only refer to the contract, which provides for payment of the balance on delivery of the horse, to show how impossible it is to read into it an agreement to pay 8 to the prisoner whether he gave delivery of the horse or not; it was clearly only a deposit by way of part payment of the price of the horse, and there was ample evidence that the prosecutor never intended to part with the property in the money when he gave it into the prisoner's possession.?" [p.651]

In this case the appellant, a letter-writer by profession, agreed to prepare documents for the complainant in consideration for a promise by the complainant to pay him G3 10s. for his services. These facts in our view constituted a simple contract between the complainant and the appellant under which the complainant was bound to pay the agreed sum to the appellant as soon as the preparation of the documents was completed. It was in pursuance of this agreement therefore that the complainant made an out-and-out payment of G3 10s. to appellant and there can be no doubt on the evidence that it was the intention of the complainant that the appellant should become the owner of the money forthwith: (See R. v. Collins.7) In R. v. Buckmaster8, Coleridge, C. J. said:

"In the first place, supposing there was an intention on the part of the prosecutor to part with the property in the money, in order to pass that property from the prosecutor to the prisoner there must be a contract, that is, the bringing together of two minds, but here there was nothing in the shape of a contract by which the property could pass, for if the prosecutor meant to part with the money, it was on the terms that the prisoner should do something with it, that is, should return the money to the prosecutor if the horse won. But the prisoner did not do so, and never intended to do so . . .

But, secondly, I think the true view is that the property in the money was not intended to pass to the prisoner.

In R. v. Robson the circumstances were . . . like those of the present case. There 'the prosecutor was drawn in to deposit twenty guinea notes on a bet that one of the prisoners could not guess right three times successively on the hiding of a halfpenny by another of the prisoners under a pot; he put the notes in the hands of one of the prisoners, and then, the other guessing right, the notes were handed over. The question was left to the jury whether, at the time the notes were taken, there was not a plan between the prisoners that they should be kept, under the false colour of winning a bet; and the jury so found. Upon a case reserved, the judges held that the conviction was right, because at the time of the taking the prosecutor parted with the possession only'. It was held there that the taking was felonious, because the parting with the money was obtained by fraud, and only the possession and not the property passed. Bayley, J., when reserving the case for the consideration of the judges, pointed out that at the time the prisoners took the prosecutor's notes, the latter parted with the possession only, not with the property."

We did not think that the sum of G3 10s. was obtained by the appellant by trick; it was paid under a valid contract, and if the complainant consented to give it to the appellant in the belief that that was the lawful fee to pay then whatever intent to defraud might have been in the mind of the appellant, the crime of stealing was not committed. The effect of fraud where a contractual relationship is established is as a rule only to make the transaction voidable and not void and as Wills, J., said in R. v. Clarence9:

"Money or goods obtained by false pretences still become the property of the fraudulent obtainer unless and until the contract is revoked by the person defrauded, and it has never been held that, as far as regards the application of the criminal law, the repudiation of the contract had a retrospective effect, or there would have been no distinction between obtaining money under false pretences and theft." [p.652]

We are of the opinion that the facts of this case do not support a charge of stealing of any kind and that the trial circuit judge erred in treating "that which affords good ground for a civil claim as constituting a criminal offence".

For the reasons given we allow the appeal and quash the conviction. The appellant is accordingly acquitted and discharged.

Decision

<P>Appeal allowed.</P> <P>Appellant acquitted and discharged.</P>

Plaintiff / Appellant

Appellant in person.

Defendant / Respondent

K. Dua Sakyi with him Sarkodee

Referals

1) Oppenheimer v. Frazer [1907] 2 K.B. 50

(2) R v. Stewart (1845) 1 Cox C.C. 174

(3) R v. Russet [1892] 2 Q.B. 312

(4) R v. Collins (1922) 128 L.T. 31

(5) R. v. Buckmaster (1888) 20 Q.B.D. 182

(6) R. v. Clarence (1888) 22 Q.B.D. 23

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