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REX
V.
ERNST FRIEDRICH
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
5TH DAY OF DECEMBER, 1944
2PLR/1944/84 (WACA)
OTHER CITATION(S)
(1944) X WACA PP. 289 – 293
2PLR/1944/84 (WACA)
LEX (1944) – X WACA PP. 289 – 293
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
HARRAGIN, C.J., GOLD COAST
M’CARTHY, J.
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BETWEEN:
REX – Respondent
AND
ERNST FRIEDRICH – Appellant
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ORIGINATING COURT(S)
Appeal from the Accra Assizes
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REPRESENTATION
E.C. Quist with K. A. Bossman and J. Sarkodee Adoo – for Appellant
Akufo Addo – for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Criminal Code, s. 271(1); s. 34 – Stealing by means of employment; defence of lawful appropriation
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CASE SUMMARY
Appellant was charged on seven counts with stealing by means of employment on certain dates; but he was convicted on counts 4, 5 and 6 only. There was no concealment or attempt at concealment of the respective appropriations: in every case his account was debited with the cost of the goods appropriated. He was manager of de Santos’ business with practically a free hand, and de Santos had written to him to say: “Regards the lime-Franklin venture, of course I will be in it”. The goods set out in counts 4 and 6 were appropriated by the Appellant to be used in the ” lime’ venture. As regards the goods set out in count 5, Appellant said he sold them to Abdo, who credited Appellant’s personal debts. On appeal it was argued that Appellant’s appropriation was lawful and exonerated within the terms of s. 34, the necessary proof being furnished by his acquittal on counts 1 and 2; and in regard to count 5, that de Santos had previously approved his having materials for his personal use and charging himself at stock prices. At the dates set out in counts 1 and 2 Appellant’s account with de Santos was in credit.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing Appellant’s appeal upon count 5) that:
(1) that before section 34 comes into operation it must be proved that it was lawful “to appropriate the particular moneys or other things or any of them”;
(2) that the acquittal on counts 1 and 2 having been due to the trial Judge’s giving Appellant the benefit of the doubt, in view of his account being in credit, was no proof that the appropriation was lawful, and the Judge was right in ignoring s. 34 in regard to those counts;
(3) that in regard to counts 4 and 6, as Appellant had a practically free hand and Santos had said he would join the “lime” venture, Appellant was entitled to an acquittal in respect of the goods he gave for that venture;
(4) that in regard to count 5, Appellant was dishonest in giving Abdo goods belonging to de Santos for the purpose of repaying his own debts.
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MAIN JUDGMENT
The judgment of the Court was delivered by the President:
The Appellant was charged at the Accra Assizes upon the following seven counts:-
“First Count.
“Stealing by means of employment; Contrary to section 271(1) of the Criminal Code.
Particulars of offence.
Ernst Friedrich on or about the 31st day of May, 1943 at Accra in the Eastern Province stole 75 gallons of petrol and 4 gallons of Ery-oil all to the value of £12 12s. property of Manoel Assumcao de Santos of which he had the control by reason of his employment as manager of the business of the said Manoel Assumcao de Santos.
“Second Count.
“Stealing by means of employment: Contrary to section 271(1) of the Criminal Code.
Particulars of offence.
Erst Friedrich on or about the 30th day of June, 1943, at Accra in the Easter Province stole 58 gallons of petrol and 4 gallons of Ery-oil all to the value of £9 5s. property of Manoel Assumcao de Santos of which he had the control by reason of his employment as manager of the business of the said Manoel Assumcao de Santos.
“Third Count.
“Stealing by means of employment: Contrary to section 271(1) of the Criminal Code.
Particulars of offence.
Ernst Friedrich on or about the 28th day of July, 1943, at Accra in the Eastern Province stole one typewriter property of Manoel Assumcao de Santos of which he had the control by reason of his employment as manager of the business of the said Manoel Assumcao de Santos.
“Fourth Count.
“Stealing by means of employment: Contrary to section 271(1) of the Criminal Code.
Particulars of offence.
Erst Friedrich on or about the 1st day of September, 1943 at Accra in the Eastern Province stole 37 empty lime drums and 8 gallons of petro all to the value of £29 19s. 8d., property of Manoel Assumcao de Santos of which he had the control by reason of his employment as manager of the business of the said Manoel Assumcao de Santos.
“Fifth Count.
“Stealing by means of employment: Contrary to section 271(1) of the Criminal Code.
Particulars of offence.
Ernst Friedrich on or about the 2lst day of September, 1943 at Accra in the Eastern Province stole 4 dozen brass bolts, 2 dozen paint brushes, 44 pairs of assorted hinges, 12 cylinder latch locks, 11 drums of distemper; 2 drums of paint, 230 of gutter brackets, 78 gutters 2 pieces of board, 2lb. of wire nails, and tins of turpentine all to the value of £70 9s 5d., property of Manoel Assumcao de Santos of which he had the control by reason of his employment as manager of the business of the said Manoel Assumcao de Santos.
“Sixth Count.
“Stealing by means of employment: Contrary to section 271(1) of the Criminal Code.
Particulars of offence.
Erst Friedrich on or about the 28th day of September, 1943 at Accra in the Eastern Province stole 1 gallon of turpentine, 11 gallons of Oxide paint, 60 pieces of nuts and bolts and 7 empty oil drums all to the value of “£57 14s. 3d. property of Manoel Assumcao de Santos of which he had the control by reason of his employment as manager of the business of the said Manoel Assumcao de Santos.
“Seventh Count.
“Stealing by means of employment: Contrary to section 271(1) of the Criminal Code.
Particulars of offence.
Ernst Friedrich during the month of December, 943 at Accra in the Eastern Province stole 200 corrugated iron sheets all to the value of £20 and 176 pieces of timber all to the value of £14 18s. property of Manoel Assumcao de Santos of which he had the control by reason of his employment as manager of the business of the said Manoel Assumcao de Santos.”
He was acquitted upon counts 1, 2, 3 and 7, but convicted upon counts 4, 5 and 6, and sentenced to 3 months’ I.H.L., on each of those counts the sentences to run concurrently. Against those convictions he has appealed to this Court. It will be convenient to consider ground 2(c) of the grounds of appeal first. It reads:
“(c) The Learned Trial Judge misdirected himself in law inasmuch as he failed to consider the effect of section 34 of the Criminal Code (Cap. 9) in relation to charges 4, 5 and 6 upon which he convicted the Accused and having regard to the facts and circumstances established in the Accused’s favour.”
We have given very careful consideration to this ground and to the, terms of section 34 of the Criminal Code. That section reads:-
“34. If it is proved, on behalf of a person accused of having stolen or committed a fraudulent breach of trust in respect of moneys or other things, that it was lawful for him to appropriate the particular moneys or other things, or any of them, and that he was only bound to account for the amount or value thereof, he shall not be deemed guilty in respect of the moneys or things which he has appropriated, unless proof is given against him that he has admitted that the appropriation of them was dishonest or proof is given that he has concealed or absconded with them or with the proceed s of them, or that he has concealed or denied, or attempted to conceal, or refused or omitted to disclose according to his duty, the fact of the receipt or disposal of them, or it is mad e to appear that he knew that the effect of the disposal of them would be to disable him from accounting for the amount, value, or proceeds of them according to his duty.”
It will be seen that before the section comes into operation it must be proved that it was lawful to appropriate the particular moneys or other things or any of them. It has been submitted on behalf of the Appellant that the fact that he was acquitted on counts 1 and constitutes, of itself, the necessary proof; but we cannot agree with this proposition.
In acquitting on counts 1 and 2 the learned trial Judge said:-
“From these figures it may be seen that when the goods mentioned in counts 1 and 2 were appropriated by accused his account with de Santos was in credit and I am not prepared to say on the evidence, although de Santos had not at that time agreed to come into the Lime Venture, that the accused knew or believed that de Santos’ consent to the appropriation would not have been given.”
As we understand that it means that the Judge gave the Appellant the benefit of the doubt as to whether or not the appropriation was criminally dishonest; that is something very different from proof that it was lawful. We are therefore of opinion that the learned trial Judge rightly ignored the provisions of section 34 of the Criminal Code; and this ground of appeal fails. The remainder of the argument submitted to us was directed to show that there was no proof of guilty knowledge or dishonest appropriation on the part of the Appellant and that the learned trial Judge misdirected himself in this respect.
At the outset it must be pointed out in Appellant’s favour and this particular point applies equally to counts 4, 5 and 6 – that there was no concealment or attempt at concealment of the respective appropriations. In every case suitable entries were made debiting the Appellant’s account with the cost of the goods appropriated; but this, though a strong point, is not conclusive of innocence.
The convictions on counts 4 and 6 on the one hand and on count 5 on the other must be dealt with separately.
To deal with counts 4 and 6 first.
It is common ground that the goods set out in these counts were appropriated by the Appellant to be used in what has been termed “the lime venture”, it is also common ground that the Appellant was manager of the business of de Santos with practically a free hand, and it is in evidence that prior to the dates of the appropriations de Santos had written to the Appellant:-
“Regards the lime-Franklin venture, of course I will be in it I am sure it will pay O.K. Also I am sure that Franklin must have gone into details and will not rush to put his own money in it if the prospects were not good.”
In our view it is possible that these facts taken together may have led the Appellant to believe that de Santos would approve of his stock of materials being used to benefit a venture in which he had declared his intention of joining. If that is so the appropriations were not dishonest and Appellant is entitled to an acquittal; we think, in any case, he is entitled to the benefit of the doubt on these counts. The learned trial Judge did not put the facts and argument on these counts in quite this way and we think that, in so far as he omitted to do so the omission amounted to a misdirection.
For these reasons the appeal against the convictions on counts 4 and 6 is allowed, the convictions and sentences upon those counts are quashed and it is directed that in respect of counts 4 and 6 a judgment and verdict of acquittal be entered.
The facts on count 5 are very different.
Appellant’s own evidence as to this transaction is:
“The things I sold to Abdo I acquired first from de Santos and then I sold them to Abdo. Abdo Bros paid for the goods. I had debts with Abdo Bros. and to repay my debts I gave them these goods. They did not pay for the materials in cash. My debts to Abdo were my own person al debts. I gave the materials to Abdo Bros. on the same basis as that which de Santos would have done.”
That basis was cost price, although the value of the materials had become greatly enhanced.
The Appellant’s justification for this appropriation is exceedingly weak. In fact he attempts two justifications; first he says that de Santos had previously approved his having materials from store for his personal use and I understood that whenever I needed things for my personal use I could take them and charge myself at stock prices.”
But they are two very different things to take materials for personal use and to take them in order to use their value in liquidating a debt. Secondly Appellant says, in effect, that in giving the materials to Abdo at cost price he was merely carrying out de Santos’ policy of helping his fellow contractors; but if this were the case the obvious course was to pass the entry straight into de Santos’ books as a credit sale to Abdo.
In all the circumstances we are in entire agreement with the learned trial Judge’s finding upon this count:
“I am satisfied that accused neither knew nor believed that de Santos’ consent would have been forthcoming. The appropriation was therefore dishonest.”
The Appellant’s appeal upon count 5 is dismissed and the conviction and sentence upon that count are upheld.