059-NLR-NLR-V-23-THE-KING-v.-ARNOLIS.pdf
Present: Bertram O.J.
THE KING v. ARNOLIS.1921.
139—D. <7. Colombo, 5,928.
Theft— Accused charged with dishonest retention of stolen property —
Evidence of previous sales of stolen timber by accused—Criminal
Procedure Code, ss, 182 and 408—Penal Code, ft 394.
Accused, who had agreed with a timber merchant to sell him acertain quantity of timber, went with another person and openeda timber store belonging to Messrs. Darley, Butler & Co., andloaded carts with timber. He was promptly arrested at the storesin the act, «nd was charged with dishonest retention of stolenproperty under section 394 of the Penal Code.
Evidence was led at the tried to prove that he had sold timberbelonging to Messrs. Parley, Butler & Co. to others on previousoccasions.
Held, that while the charge of dishonest retention was not appro-priate to the circumstances, it was open to the Court to convict theaccused of theft under section 182 of the Criminal Procedure Code.
The evidence of previous sales of stolen timber was admissible onthe question of theft. “ This evidence was tendered under section408 of the Criminal Procedure Code in support of the charge ofretaining stolen property. It was, no doubt, because he wished toutilize this evidence under that section that counsel for the Crowndeclined to amend the indictment. But this section ought not to bemade use of in this indirect manner. If the circumstances do notreally indicate the offence of retention of stolen property, thesection does not apply at all. On the other hand, this evidencewas admissible on the question of theft altogether independently ofthat section. It was relevant as evidence of a systematic course ofdealing by the accused inconsistent with the possible defence on thepart of the accused, namely, that he had innocently fetched thecarts, or that he had on this occasion innocently lent himself to thescheme of the real thief."
^^PPEAL from an acquittal.
Jansz, C.C., for the appellant.—To constitute theofience of dis-honest retention of stolen property there need not be a change in themental element of possession from anhonest to a dishonest conditionof mind. The latest Ceylon rulings differ from the Indian rulingswhich the District Judge has followed (see 1 C. W. R. 230).
Soerisz, for the accused, respondent.—There are many Ceylondecisions in favour of the District Judge's view. (3 N. L. R. 267 ;2 N. L. R. 4 ; P. C. Anuradhapura, 18,9431; P. C. Trincomalee,5,945s; and P. C. Panadure, 12,860.3) The facts disclose an offence
1 iff. 0. Min., Jan. 77,1898.* S. C. Min., Jan. 24,1898.
* 8. C. Min., Aug. 7,1902.
20
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1921.of theft if any offence waft committed, and not the offence of
“dishonest retention. It is not proper to charge under section 394
«. ArnoIm with the object of leading evidence of previous dealings with stolengoods.
The facts relied on by the prosecution to prove theft are notinconsistent with the innocence of the accused.
October 18,1921. Bertram C.J.—
This an appeal by the Solicitor-General against an acquittal.The accused was charged “ that on or about March 30,1921, he diddishonestly retain 420 teak planks, the property of Messrs. Darley,Butler & Go., Limited, knowing them to be stolen property/’
The evidence discloses that the accused took part in what was avery imprudent theft. On March 29,1921, he came to one CornelisPerera, a timber merchant, and offered a quantity of teak planksfor sale. Knowing that timber had been missed from Messrs.Darley, Butler’s stores, Cornelis Perera suspected him, and comrmunicated with Messrs. Darley, Butler’s manager, Mr.. Foucar, whorequested Cornelis Perera to get the timber brought to his store. OnMarch 30 the accused, with a man who appeared to be a clerk, wentto Messrs. Darley, Butler’s store, which his companion opened witha key. Three carters engaged by the accused were in attendance,and saw the store opened. Accused ordered the carts to be loaded.Two went off to Cornelis Perera?s, but before the third cart haddeparted, Mr. Foucar, Messrs. Darloy, Butler’s manager, arrived;the cart was detained, and the accused was taken to the policestation. He explained to Mr. Foucar that he had been merelyasked to fetch the carts, but did not say who asked him to do so. Thestores were not at the time in charge of a storekeeper, but there wasa watcher on the premises. Both on March 28 and 30 this man sawthe accused and the supposed clerk come to the stores and openthem. The clerk told the watcher that the accused was a kanganyof Messrs. Darley, Butler’s, and the accused did not deny it.
In addition to this evidence, three other timber merchants werecalled, who proved that on February 24, March 2 and 8, and March25 and 28, accused came to them and sold them timber with marksfrom which it can be identified as Messrs. Darley, Butler’s timber,producing memoranda with the name of Messrs. Darley, Butler’s firmprinted upon them, purporting to indicate that the timber sold hadbeen supplied to the accused by Messrs. Darley, Butler. Forgedsignatures of an assistant storekeeper of Messrs. Darley, Butler’swere upon these documents.
The learned District Judge very truly observed in the course of theevidence that if the evidence disclosed an offence it was the offenceof theft and not that of retaining stolen property, and he invitedcounsel for the Crown to amend the indictment. Counsel for theCrown did not accept this invitation. In giving judgment the
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learned Judge took a view of section 394 of the Penal Code (retainingstolen property), which, though adopted in India, has been discardedby this Court. This view is expressed by an Indian commentatoras follows: “ Neither the thief nor the receiver of stolen propertycommits the offence of retaining stolen property dishonestly, merelyby continuing to keep possession of it. To constitute dishonestretention there must be a change in the mental element of possessionfrom an honest to a dishonest condition of mind in relation of thething possessed.*1 It is sufficient to say that we do not adopt thisview of the section (see the judgment of Shaw J. in Brantha v.Kaliamuttu1).
The learned District Judge was perfectly right in saying that theevidence disclosed theft or nothing. It was open to him, however,under section 182 of the Criminal Procedure Code, to convict theaccused of theft, if he thought that the circumstances of the casejustified it. He came to the conclusion that they did not, and forthis reason. The accused said that he was under the impression thatthe person who accompanied him to the stores was the storekeeper,and that the storekeeper had authority to sell the timber, and thathe accordingly assisted the storekeeper in return for a commission.The learned Judge thinks that “ the circumstances of the case donot show that this cannot be a true account.” I regret that Icannot share the charitable view of the learned Judge. The accusedwhen first arrested put forward the excuse that he had merelyfetched the carts. He allowed it to be said in his presence that hewas a kangany of Messrs. Darley, Butler’s. Quite apart from this,I find it impossible to believe that a person of the accused’s statuscould honestly think that a person purporting to be a storekeeper ofMessrs. Darley, Butler’s had authority to take timber from thestores and sell it on commission.
I would also point out that this is not a case of a presumption tobe drawn from recent possession of stolen property. The accusedwas actually found removing the property in co-operation with bnadmitted thief. It is for him to give a reasonable account of howhe came to be engaged in this transaction, and he cannot be said tohave done this.
It is necessary that I should say something as to the evidenceof the three timber merchants above referred to. This evidencewas tendered under section 408 of the Criminal Procedure Code insupport of the charge of retaining stolen property. It was nodoubt because he wished to utilize this evidence under that sectionthat counsel for the Crown declined to amend the indictment. Butthis section ought not to be made use of in this indirect manner.If the circumstances do not really indicate the offence of retention ofstolen property, the section does not apply at all. On the other hand,this evidence was admissible on the question of theft altogether
1 {1915) 1C. W. R. 230,
1921.
Bertram
C.J.
The Kingv. Amolls
1081.
Bbbsbah
O.J.
The King
v.Amolis
independently of that section. It was relevant as evidence of asystematic coarse of dealing by the aooused inconsistent with apossible defence on the part of the accused, namely, that he hadinnocently fetched the carts, or that he had on this occasion inno-cently lent himself to the scheme of the real thief. (See Matin v.Attorney-General for New South Wales.1)
The learned Judge, with reference to this evidence, says that heis not affected by it because the timber disposed of to these merchantsmay possibly have been timber, with the same marks, which wassold by Messrs. Darley, Butler to other parties several monthsbefore* The Learned Judge has apparently overlooked the fact thatthe acoused accompanied the delivery of this timber with forgedmemoranda purporting to be issued by Messrs. Darley, Butler at thetime. I think that it is perfectly clear from ail the circumstancesof the case that the accused was an accomplice in the theft.
I set aside the acquittal of the accused and convict him of theftin pursuance of section 182 of the Code, and sentence Mm to oneyear’s rigorous imprisonment.
Set aside.