–
REX
V.
JEREMIAH TERRY
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT FREETOWN, SIERRA LEONE
29TH DAY OF MARCH, 1944
2PLR/1944/51 (WACA)
OTHER CITATION(S)
2PLR/1944/51 (WACA)
(1944) X WACA PP. 141 – 143
LEX (1944) – X WACA PP. 141 – 143
–
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
GRAHAM PAUL, C.J., SIERRA LEONE
DOORLY, J.
–
BETWEEN:
REX – Respondent
AND
JEREMIAH TERRY – Appellant
–
ORIGINATING COURT(S)
Appeal by the Defendant from the decision of the Supreme Court.
–
REPRESENTATION
N. J. P. M. Boston — for Appellant
C. Abbot, S.G., and S. 4. Benka-Coker (Crown Counsel) — for Crown
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Larceny; Receiving; Aiding and abetting larceny — Imperial Statutes (Criminal Law) Adoption Ordinance, 1932 — Larceny Act, 1916, s.2; s. 33 (1); s. 35 — Trial with assessors, under Jurors and Assessors Ordinance, Cap. 106
–
CASE SUMMARY
Defendant was charged on two counts – (1) Larceny and (2) Receiving – both relating to the same goods. All three assessors were of opinion that he was not guilty of receiving one that he was not guilty of larceny, and two that he was. The Court found him not guilty of larceny but convicted him of receiving on count (1) and acquitted him of receiving on count (2). On appeal the main point was that in view of the acquittal of receiving on count (2), and the Judge’s verdict that he was not guilty of larceny on count (1), the defendant could not have been convicted of receiving on count (1), the goods being the same.
–
DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
(1) in convicting the appellant of receiving on count (1) the Judge must have been satisfied of facts proving him guilty of larceny.
(2) the evidence on which the Judge found appellant guilty of receiving was evidence of aiding and abetting the larceny, and that his verdict should have been larceny on count (1).
(3) a verdict of guilty of larceny be substituted for the Judge’s verdict on count (1) and the acquittal of receiving on (2) be left undisturbed.
–
–
MAIN JUDGMENT
The judgment of the Court was delivered by Graham Paul, C.J. (Sierra Leone):
The Appellant in this case was charged in the Supreme Court of the Colony of Sierra Leone upon two counts: the first count, Larceny contrary to section 2 of the Larceny Act, 1916, and the second count, Receiving stolen goods contrary to section 33(1) of the Larceny Act, 1916. Both counts related to the same goods.
The case was tried by a Judge with the aid of three assessors under the Jurors and Assessors Ordinance (Cap. 106). At the close of the trial the presiding Judge summed up very fully to the assessors and thereafter each assessor was in turn asked to give his opinions on the first and the second counts. These opinions were duly recorded by the Court as follows:-
”1. Ass. Guilty of Larceny 1st Count Not Guilty of Receiving 2nd Count.
·2. Ass. Guilty of Larceny 1st Count Not Guilty of Receiving 2nd Count.
“3. Ass. Not Guilty of Larceny 1st Count Not Guilty of Receiving 2nd Count.
The record then proceeded as follows:-
“Verdict of the Court:
“Not Guilty larceny; Guilty of Receiving Count 1.
“Not Guilty of Receiving Count 2
“Acquittal and Discharged2 Count as Assessors unanimous.”
From that conviction the appellant has appealed to this Court on questions of law; he has also appealed, with the leave of the Court, on questions of fact, and against sentence. Although the three appeals were heard separately, they are all three covered by this judgment. The grounds of appeal on questions of law are:
“1. That as the Assessors who tried the case with His Honour the Acting Chief Justice were unanimous in their opinion that I was not guilty on the charge of Receiving six cases of Ovaltine knowing the same to have been stolen the learned Acting Chief Justice was wrong in law in convicting me on that charge.
2. That as His Honour the Acting Chief Justice overruled the opinion of two of the three assessors on the charge of Larceny of six cases of Ovaltine and acquitted me on that charge and as the assessors were unanimously of the opinion that I was not guilty of the charge of Receiving the six cases of Ovaltine knowing the same to have been stolen a verdict of acquittal should have been entered in my favour on that charge.”
The grounds of appeal on questions of fact are-
”3. That the verdict was against the weight of evidence.
and
“4. That there was not sufficient evidence to support the verdict of guilty on the charge of Receiving stolen property knowing the same to have been stolen.”
Upon consideration of all the evidence and the arguments of counsel, we have come to the conclusion that the learned Judge in giving his verdict of guilty of receiving upon the first count must have been satisfied of facts which proved the accused guilty of larceny. In finding his verdict of guilty of receiving we consider that the learned Judge omitted to bear in mind that section 35 of the Larceny Act, 1916 which reads
”Every person who knowingly and wilfully aids, abets, counsels, procures or commands the commission of an offence punishable under this Act shall be liable to be dealt with, indicted, tried and punished as a principal offender.”
applies to Sierra Leone by virtue of the provisions of the Imperial Rex Statutes (Criminal Law) Adoption Ordinance, 1932 (No. 45 of 1932) and overlooked the fact that the evidence upon which he found the appellant guilty of receiving was evidence that this appellant aided and abetted the larceny, so that the appellant was properly charged with larceny and could properly be convicted of larceny as though he were a principal offender. We therefore hold that the proper verdicts were Guilty of Larceny on the first count and Not Guilty on the second count of Receiving.
Following the decision of the Court of Criminal Appeal in England in the case of Rex v. Smith (17 C.A.R. 133) and having no doubt that the appellant upon the evidence was guilty of larceny, we have decided to substitute a verdict of guilty of larceny upon the first count for the verdicts of not guilty of larceny and guilty of receiving given by the learned Judge on the first count, and to leave unaltered the verdict of not guilty upon the second count.
The verdicts of the learned Judge on the first count are accordingly set aside and a verdict of guilty of larceny substituted therefor. Taking that view of the whole case, it is not necessary for us to consider the questions of law raised by the appellant in regard to the learned Judge’s verdict on the first count of guilty of receiving which now disappears.
As to the appeal against sentence, we see no reason to alter the sentence of the Court below, and the sentence of three years’ imprisonment with hard labour accordingly stands upon the substituted verdict of guilty of larceny on the first count.
–