028-NLR-NLR-V-17-ANDRIS-v.-DON-CHARLES.pdf
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[In Revision]Present: Pereira J.ANDRIS v. DON CHARLES.
P.C. Colombo, 43,575.
Theft—Accused drunk—intention necessary to constitute offence.-
When a crime is such that the intention of the party committing1it is one of its constituent elements, the fact that the accused wasdrunk may be taken into consideration in deciding the questionwhether he had the intention necessary to constitute tlie crime.
rpHE accused in this case was charged under section 367 of theA Penal Code with having committed theft of a necklace, andwas sentenced to undergo one month's rigorous imprisonment.
He moved the Supreme Court by way of revision.
De Jong, for the petitioner (accused).—Section 79 of the PenalCode enacts that if a particular knowledge or intention is necessaryto constitute an offenee, the accused, if drunk, is liable to be dealtwith as if he had the same knowledge as he would have had if hehad not been intoxicated. The section does not say “as if be hadthe same intention or knowledge."
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Garvin, Acting S.-G., was heard as amicus ounce. He admittedthat English authorities were in favour of the view that drunken-ness is an element to be considered in deciding the questionwhether the accused had a particular intention.
Cur. adv. vult.
December 12, 1913. Peeeiba J.—
In this ease Mr. de Jong has moved, with notice to the Attorney-Genesal, that the judgment and sentence be dealt with in revision,the reason for this application for revision being that the sentenceis below the appealable limit. I think it is clear that, on theevidence, the aeeused eannot be said to have had that intentionthat is neeessary to constitute the offence of theft. It is only adishonest removal of property that constitutes theft, and to do athing dishonestly is to do it with the intention of causing wrongfulloss to one person or wrongful gain to another. The Magistratesays: “ The accused was drunk, and may have taken the ornamentbecause he saw it lying there When he picked the clothes." Under
1918.
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1918. sectiop 79 of the Penal Code intoxication does not negative know-T ledge when that is an element of an offence; but as to intention, our—.—law is the same as the English law on the subject, that is to say,
D^CharleB * w^en a cr^me *s such that the intention of the party committingit is one of its constituent elements, you may look at the fact thatthe man was drunk in considering whether he had the intentionnecessary to constitute the crime ” (1 Gout. 346). Considering thecondition of the accused at the time of the alleged offence, it is,to say the least, very doubtful that he intended to commit theft.He does not appear to have subsequently misappropriated theproperty. The string of beads was eventually found on the windowof the complainant’s own house. If he misappropriated theproperty, he might have been charged with criminal misappropriationof property.
I set aside the conviction, and direct that the acused be forthwithreleased from further custody.
Set aside.