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COMMISSIONER OF POLICE v. SENCHEREY


  • appeal
  • 1959-05-15
  • COURT OF APPEAL
  • GLR 225-229
  • Print

VAN LARE J.A. AS.C.J., ACOLASTE J. AND OLLENNU J.


Summary

Theft?-False pretences?-Two thefts charged in one count?-Charge bad for duplicity.

Headnotes

Augustine Mensah and George Sencherey were in agreement that Mensah had handed to Sencherey cash to a total value of 45. 10s. 0d., which Sencherey had not returned to Mensah either in cash or in kind.Mensah later gave it in evidence that, in consequence of what his nephew Kwame Djubeng and one Kwaku Mensah told him, he had contacted Sencherey, who personally told him that he (Sencherey) had two spraying machines for sale at 50 each. Augustine Mensah thereupon handed 50 to Sencherey through Kwaku Mensah. Sencherey did not show Augustine Mensah anything?-the latter said he trusted Kwame Mensah. Sencherey took away 20 to bring back a permit and the machine, leaving 30 with Kwaku Mensah. On his return, Sencherey said the permit was not ready. Augustine Mensah then took back the 30 from Kwaku Mensah, and handed it to his nephew Kwame Djubeng, to keep until Sencherey handed over to Djubeng the machine and permit. Later, Augustine Mensah took back the 30 from Djubeng. Next day Sencherey came again, said he had secured the permit, and asked for the 30. Augustine Mensah went with him to Kwaku Mensah, who advised payment. Augustine Mensah paid Sencherey 25. 10s. 0d., promising him the balance of 4. 10s. 0d. on delivery of the machine. Sencherey neither delivered the machine nor returned the moneys. Augustine Mensah had taken no receipt from him, but before Mensah reported the matter to the Police, Sencherey had taken him to a letter-writer, who prepared what Sencherey said was a receipt. Mensah could not read or write, the letter-writer did not read the document to him, and Mensah refused to accept the paper.Sencherey, on the other hand, gave it in evidence that he had approached Augustine Mensah for a loan of 45. 10s. 0d. to carry on his timber business. He promised to repay next day, but did not do so because one of his own debtors had not paid him. Though literate himself, he took Augustine Mensah to a licensed letter-writer for the latter to prepare a receipt in Augustine Mensah's presence. Augustine Mensah and the nephew Djubeng touched pen, but their thumb-prints were not taken. Sencherey, after defaulting on the repayment, was away from Kumasi for several days, and on his return found himself arrested.On Augustine Mensah's allegations, Sencherey was charged in a single count with stealing "cash the sum of 45. 10s. 0d. the property of one Augustine Mensah." At the trial, Augustine Mensah's evidence was supported by that of Kwaku Mensah and Djubeng. Sencherey gave evidence, but did not call the letter-writer or any other witness. He was convicted, the District Magistrate's judgment concluding as follows:"I am satisfied beyond all reasonable doubt that the accused did receive this money from P.W. 1 on the representation that he had a cocoa spraying machine for sale knowing very well that he had no such machine. I find him guilty and convict him accordingly."Sencherey appealed to the High Court, where the learned Judge (Murphy J.) said:"In my view the District Magistrate's findings of fact were supported by the evidence, but on those findings the appellant should have been convicted of fraud by false pretences and not stealing. I think that in fact the District Magistrate did intend to record a conviction for fraud by false pretences, but this is not altogether clear from the concluding part of his judgment. He should have said in so many words that he found the appellant not guilty of stealing but guilty of fraud by false pretences."On the assumption that the conviction by the District Magistrate was for stealing I set this conviction aside and substitute a conviction for fraud by false pretences. Subject to this, the appeal is dismissed."Sencherey appealed further to the Court of Appeal (Criminal Appeal No. 24/59).

Judgement

Van Lare Ag. C.J. he delivered the judgment of the Court:

We allowed this appeal at the last sitting, and now proceed to give our reasons. The appellant was convicted at the Magistrate?'s Court, Kumasi, before Mr. Beckley, District Magistrate, upon a count charging him with the offence of stealing cash the sum of 45 10/-, the property of one Augustine Mensah ,contrary to section 287 (1) of the Criminal Code.

This count was bad for duplicity, for from the evidence at the trial there appear to have been allegations of two separate and distinct offences, and they have been charged in one count instead of being made the subject of two counts, as the law requires. It is very trite learning in criminal pleadings that no more than one offence may be charged in any one count. Section 108 of the Criminal Procedure Code provides as follows:

(His lordship read the section, and proceeded:?-)

The cash alleged to have been stolen was made up of two separate and distinct sums, G20 and G25 10/- respectively, given to the appellant by the complainant on two different occasions. The evidence for the prosecution is that on a certain date, in view of what the complainant Augustine Mensah had heard from his son Kwame and also from another Mensah, the complainant left his money, a sum of G20,. with the appellant, from whom he expected to buy a spraying machine. The appellant went away, promising to return with the machine and with a permit in order to effect the sale. He returned without it, saying that the permit was not ready. This was one exercise. At a later date, and on the strength of what the other Mensah had told him, the complainant gave a further sum of G25 10/- to the appellant to make up the money for the purchase of the spraying machine. It was expected that the balance of the purchase price, in the sum of G4 10/-, was to be paid on delivery of the spraying machine to complete the sale. It turned out that the sale had not been completed, as the complainant failed to make delivery. The matter was eventually reported to the Police, and in respect of these facts the appellant was charged with the offence of stealing.

The appellant, who has been unrepresented throughout, cannot be presumed to know the niceties of criminal pleadings, and he could not therefore be expected to object to the defective form of the charge preferred against him. The evidence was such that it might have been possible for the appellant to have been convicted in respect only of the sum of G20, if it were believed that consent was obtained by stratagem or deceit, and/or acquitted on the other [p.228] count (or on both counts, if there had been two separate charges) in the absence of evidence from which dishonesty could be inferred. In the circumstances, therefore, it cannot be said that no prejudice or embarrassment was caused by the two alleged offences being charged in one count contrary to the requirements of the law.

In this case the appeal could succeed on this ground alone; but there were other grounds fatal to the conviction. It would appear that there was some embarrassment on the facts, and on the law applicable to them, in the minds of both the trial-Magistrate and the Judge of the Divisional Court, Kumasi, who dismissed an appeal against conviction by the Magistrate.

(His lordship referred to the judgment of the learned Judge as in the headnote, and proceeded:?-)

We can do nothing about the setting aside by the learned Judge of the conviction before the Magistrate for stealing, for even if we thought that the facts were capable of supporting a conviction for stealing we are precluded from restoring the conviction. But we do not in fact think so, for upon the evidence it is not clear that the original receipt was tortious (or not wholly innocent) so as to turn the original receipt into a dishonest appropriation by a subsequent intention to appropriate because the appellant was unable to refund the money; or that appellant later tried to misrepresent the transaction as one of loan. "If at the time when property is received the receipt is innocent, the fact that the person who has taken the property subsequently changes his mind and misappropriates it does not render the taking either receiving or larceny" (R. v. Matthews (34 Cr. App. R. 55)).

With respect, we differ from the opinion of the learned Judge that the facts support a conviction for obtaining money by false pretences. In the first place, it is not clear that the appellant had in fact no spraying machine for sale; secondly, even if there was any misrepresentation that the appellant had a spraying machine for sale it was certainly not made by the appellant himself, but rather by the other person named Mensah. The evidence is clear that if any person induced the complainant to part with his moneys if it was not the appellant, but somebody else. In view of all these considerations the conviction for false pretences could not be permitted to stand.

In his judgment the Magistrate appeared to have imported facts which were not supported by the evidence, and he also drew certain faulty inferences from those facts which were established.

Thus, in cross-examining the witness Mensah, the appellant made the mere suggestion that the witness was appellant?'s "rival." The Magistrate [p.229] in his judgment expanded this suggestion by alleging that the appellant had suggested that he had had a quarrel with this witness Mensah over a girl, and that the witness Mensah had framed up the case against him in order to get him (the appellant) out of the way. This appears to us, with due deference, to be an exercise of imagination on the part of the Magistrate.

So, too, the appellant?'s case, while not denying the receipt of the moneys from the complainant, was that the transaction was a loan, and appellant produced a copy of an acknowledgment given by him to the complainant, in support of his defence. The Magistrate in rejecting the defendant's case laid some stress on this acknowledgment, and stated as follows:

"I am not satisfied with the explanation given by the accused as to how he came by the money. Accused is literate, yet he did not prepare the Exhibit "1" (i.e. the acknowledgment) himself. Why he should go to a letter-writer to have a receipt prepared, I fail to see. Furthermore he made no attempt to repay money. I do not believe him.?"

We, on the other hand, can easily appreciate why a literate person would rather not prepare such an acknowledgement himself for an illiterate person, for fear that it might be suggested that he took advantage of his illiterate debtor?'s ignorance of the nature of the document. If made by a third party, a licensed letter-writer as in this case, more weight could and should be attached to the genuineness of an acknowledgement. We think, therefore, that the Magistrate erred in his inference, and that such a faulty inference must have coloured his decision.

Decision

<P>For the reasons given we allowed the appeal, and quashed the convictio

Plaintiff / Appellant

Appellant in person.

Defendant / Respondent

Glasgow

Referals

(1) R. v. Matthews (34 Cr. App.  R. 55).

 

(2) Section 108 of the Criminal Procedure Code was considered by the Court:

 

"(1) For every distinct offence of which any person is accused there shall, subject to the provisions of sub-section (2), be a separate charge or count.

 

"(2) Charges or counts for any offences may be joined in the same complaint, charge sheet, or information and tried at the same time if such charges or counts are founded on the same facts, or form or are a part of a series of offences of the same or a similar character."

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