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REX
V.
NICHOLAS VEGA
WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
5TH DAY OF JANUARY, 1938
2PLR/1938/52 (WACA)
OTHER CITATION(S)
2PLR/1938/52 (WACA)
(1938) IV WACA PP. 8 – 9
LEX (1938) – IV WACA PP. 8 – 9
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
BUTLER LLOYD, J.
CAREY, J.
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BETWEEN:
REX — Respondent
AND
NICHOLAS VEGA — Appellant
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ORIGINATING COURT(S)
APPEAL FROM CONVICTION BY HIGH COURT
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REPRESENTATION
C. N. S. Pollard — for Crown
Appellant not present
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE — PROOF OF CRIME:- Stealing — Taking of goods apparently abandoned — Onus of prosecutor — Whether extends to proof that accuser was not a bona fide taker thereof
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
1. The appellant admits that he took and used for himself some old corrugated iron sheets which had formed part of an old shed which had been pulled down It was about four years before his action was queried, and then he was charged with stealing these and other sheets. He clearly established his innocence in regard to the other sheets, but was convicted in respect of these old ones.
2. Under those circumstances, he acted in good faith, entirely innocently in the bona fide and reasonable belief that the old sheets had been abandoned by the Government. In other words there was no men rea and the conviction is bad for this reason on the merits.
3. The test of stealing is not: “is the thing taken yours?” Under section 383 of the Criminal Code the test is “Did the accused fraudulently take something capable of being stolen?”
4. It is well established law that “things of which the ownership has been abandoned are not capable of being stolen” If there is any ground for supposing that the accused may have believed the article found to have been abandoned by its owner, the jury must be carefully directed with regard to the matter, since, if the jury find that belief as a fact, the accused is not guilty.
5. The trial Judge failed altogether to direct his attention to the question of “what the accused may have believed,” and that failure amounted to a further misdirection.
Appeal allowed, conviction quashed, etc.
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MAIN JUDGMENT
The following joint judgment was delivered:
KINGDON, C.J., NIGERIA, BUTLER LLOYD AND CAREY, JJ.
In this case the appellant, a second class Prison Warder, was convicted in the High Court before an Acting Assistant Judge sitting at Bamenda in the Cameroons of stealing twenty-nine old sheets of corrugated iron, the property of Government.
We are satisfied that the conviction is wrong both technically and on the merits.
The appellant frankly admits that he took and used for himself, quite openly, some old corrugated iron sheets which had formed part of an old shed which had been pulled down, these sheets being left apparently abandoned in situ whilst some described as the “good zinc” were taken to the prison yard. It was about four years before his action was queried, and then he was charged with stealing these and other sheets.
He clearly established his innocence in regard to the other sheets, but was convicted in respect of these old ones. We think that he acted in good faith, entirely innocently in the bona fide and reasonable belief that the old sheets had been abandoned by the Government. In other words there was no men rea and the conviction is bad for this reason on the merits.
Apart from this the trial Judge misdirected himself in saying in his summing up “the test of stealing is: is the thing taken yours?” Under section 383 of the Criminal Code the test is “Did the accused fraudulently take something capable of being stolen?”
It is well established law that “things of which the ownership has been abandoned are not capable of being stolen” (See Archbold 29th edition page 535). If there is any ground for supposing that the accused may have believed the article found to have been abandoned by its owner, the jury must be carefully directed with regard to the matter, since, if the jury find that belief as a fact, the accused is not guilty. (See Rex v. White 23 Cox 190).
The trial Judge failed altogether to direct his attention to this question, viz. what the accused may have believed, and this failure amounted to a further misdirection.
For these reasons an appeal is allowed, the conviction is quashed, and it is directed that a judgment and verdict of acquittal be entered, further that the fine, if paid, be refunded and to the appellant.