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JOHN FRANCIS MACLARNYOH AND ANOTHER
V.
THE QUEEN
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
22ND DAY OF FEBRUARY, 1954
APPEAL NO. 41/53
2PLR/1954/84 (WACA)
OTHER CITATION(S)
2PLR/1954/84 (WACA)
(1954) XIV WACA PP. 409-411
LEX (1954) – XIV WACA 409-411
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
WINDSOR-AUBREY, J.
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BEFORE THEIR LORDSHIPS:
1. JOHN FRANCIS MACLARNYOH
2. JOSEPH DE BAKER DADSON – Appellants
AND
THE QUEEN – Respondent
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ORIGINATING COURT(S)
Appeal by convicted persons
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REPRESENTATION
Koi Larbi — for first Appellant
Eaclich — for second Appellant
Battcook, Crown Counsel — for the Crown
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Stealing by inference – Theft via failure to enter proper records – Value of specific items received – Defence of possible innocent Mistake or of general deficiency – How properly treated
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CASE SUMMARY
The appellants were tried with X and Y (who did not appeal). X ought to have entered, but did not enter, two items of goods as supplied to the first appellant, who was in charge of a store; Y also omitted to enter two items of goods supplied to the second appellant, who was in charge of another store. X and Y entered the goods as specific entries in the transit column of their books, that is to say, as unallocated, with the result that the appellants had the goods (which fact they admitted) but were not debited with them. Therefore each appellant’s own account at the end of the month, if correct, ought to have shown a surplus equal to the value of the two items of goods received by him; but neither appellant showed a surplus in his month’s account, and they were convicted of stealing respectively the amounts represented by the value of the two relevant items in the case of each. In the appeal the argument was (a) that the shortage in either appellant’s account might have been due to some possible innocent error in accounting, and (b) if there was a deficiency, it was a general deficiency which could not sustain a charge.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (Appeal dismissed) that:
(1) Once the shortage, and the means whereby it was effected, namely by the false entries made by X and Y, were established, it was incumbent on either appellant to lead evidence to establish that the shortage was due to some other cause, and neither appellant could rely on mere conjecture. Each of the appellants had admittedly received two items of goods with which he was not debited; each ought to have had a surplus in goods or cash to that extent; but no surplus existed, and the irresistible inference was that taking those goods without a debit enabled each appellant to steal from the cash received from other sales.
(2) On the facts this was not a case of general deficiency but thefts relating to specific transactions. As, however, it was not possible to show whether either appellant stole the full amount representing the value of the relevant two items of goods on one day or piecemeal over a number of days, it was correct to charge each appellant with stealing the gross sums of the relevant two items in his case.
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MAIN JUDGMENT
The following judgment was delivered:
WINDSOR-AUBREY, J.
1. In this case the two appellants appeal from the judgment of Dennison, J., who convicted the first appellant of stealing the sums of £160 and £157 12s. 0d., and the second appellant of stealing the sums of £100 and £208 16s. 9d., to which they had access by means of their employment as storekeepers to Kingsway Stores, Sekondi.
2. In the original trial two clerks Andorful and Awortwi in the employ of Kingsway Stores were also charged with making false entries in the goods inward book with intent to facilitate the crimes of stealing by the two appellants. They have not appealed.
3. It is not in our opinion necessary to set out the facts fully, but a short summary of what occurred is desirable in order that the arguments of the appellants’ counsel and the reasons for this decision may be understood.
4. The first appellant was in charge of the Provisions Store and the second appellant in charge of the Haberdashery Store.
Andorful was responsible for entering two goods inward books in respect of provisions supplied to the first appellant, and Awortwi had similar duties in respect of haberdashery supplied to the second appellant.
5. The goods inward books contain numerous columns, but it is only necessary to refer specifically to two. One column provides for the entry of the value of goods supplied to the storekeeper, and another column provides for the entry of the value of goods in transit, that is to say, unallocated goods.
6. By the simple expedient of entering all the goods the subject of these charges in the goods in transit column the two appellants received them without being debited in the books of Kingsway Stores with either the goods or their value. There is, of course, a separate entry for each of these four consignments of goods. Both appellants admit they received the goods.
It follows that, as neither of the appellants was debited with the goods, their accounts at the end of the appropriate month should have shown a surplus to the extent of the value of these goods, assuming that their accounts were otherwise correct.
No such surplus occurred, and, therefore, the Crown alleges that the two appellants stole the money represented by the value of these goods.
7. The substantial points raised on this appeal are:-
(a) that it is not proved that the shortage shown in the accounts of the two appellants is not due to some other error, such as an erroneous debit; an overcharge on other goods supplied; the defect in the stocktaking which is based on values rather than quantities of goods; or some innocent error in accounting;
(b) that even if a deficiency in cash or goods has been proved, this amounts to no more than a general deficiency which in view of the authorities cited, cannot be the subject of a criminal charge.
8. As to paragraph 7 (a) we fully agree that errors, such as, for example, an erroneous debit, an inaccurate stocktaking, (b) an undercharge for goods sold, that is to say, selling below the proper price, (c) petty thefts by customers, (d) failure to account for cash received by sub-employees of the appellants, might collectively or individually, wipe out the surplus. No scrutiny of accounts having regard to the system employed, could possibly disclose the errors referred to under items (b), (c) and (d) of this paragraph. It follows, therefore, that if the appellants’ argument is correct no employee can ever be convicted of any charge in relation to shortages of stock or money, because he can always say, the shortage may be due to circumstances which he does not explain and which are, unsupported by evidence, merely conjecture. In other words a storekeeper can juggle with his stock as he likes, and evade all criminal responsibility. This seems to us an astonishing proposition totally divorced from common sense. We are of the opinion that once the shortage, and the means whereby it is effected, are established it is incumbent on the persons charged to lead evidence to establish that the shortage is due to some other cause and that he cannot rely on mere conjecture.
As to paragraph 7 (b) it is correct to say that, as the goods, or some of them, the subject of these charges, still remain in the stock of the appellants, they cannot be charged with stealing those goods, but that is quite a different proposition to charging them with stealing the quantum of money they represent. The receipt by the appellants of these goods without the appropriate debit, is evidence, and strong evidence, of the means by which they were able to steal the sums charged. If they did not steal those sums then there should have been a surplus in stock or cash to that extent. No such surplus exists and the irresistible inference is that the taking into stock of these goods, without the appropriate debit, enabled them to steal from the cash received on other sales and it is that with which they are charged.
9. We have carefully considered the authorities cited and, in our opinion, none of them are analogous to the circumstances of this case. General deficiency does not arise here. The quantum of stock at the relevant dates and the supply of goods without a debit, are no more than evidence to show the means whereby the sums charged were stolen. The authorities are only relevant to establish the proposition that where sums of money are stolen over a number of different dates the person concerned can be charged on one count with stealing the aggregate sum. That is the position here, no evidence can possibly establish whether the appellants stole the sums charged on one day, or piecemeal over a number of days. What is established is that they stole the gross sums charged and were able to do so by taking into stock the goods shown as goods in transit without being debited with their value. The thefts relate to specific transactions. In our opinion the convictions are right and the appeals are therefore dismissed.
Appeal dismissed.
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