023-NLR-NLR-V-03-QUEEN-v.-MARSAL-SILVA-et-al.pdf
( 50 )
1897.
October 5 andNovember 19.
Plea of autrefois convict—Committal of accused after conviction, butbefore sentence—Criminal Procedure Code, s. 399.
A plea of autrefois convict will not avail unless the accused hasreceived judgment of imprisonment or other like sentence.
a
'THE two accused persons in this case were committed by thePolice Magistrate of Colombo for trial before the District
Court for criminal breach of trust.
On the trial day they pleaded aulrefois convict in case No. 48,540of the Police Court of Colombo.
It appeared that in the Police Court the Magistrate (Mr. Moor)recorded evidence for the prosecution and defence, and foundboth the accused guilty, and remanded them for sentence for thefollowing day ; but that on that day he expressed himself asfollows :—
“ On consideration I do not think that the punishment I am“ empowered by law to inflict is adequate for the offence committed“ by the aeciiseds, which has resulted in the loss to the complainant“ of property worth Rs. 750, which he has not yet recovered. The“ case should, I think, go before the District Court.”
The Additional District Judge (Mr. Pagden) upheld the plea ofaulrefois convict in these terms :—
“ As the Magistrate actually found the accused guilty he has“ convicted them, and as long as that conviction remains in force“ they cannot be tried again. It is true that section 225 of the Code“ (as amended by Ordinance No. 22 of 1890) empowers a Magistrate“ to refrain from passing sentence on an accused if he thinks he“ cannot adequately punish him, but he must do so after taking the“ evidence for the prosecution and defence, and in view of section“ 223, which says that if a Magistrate finds the accused guilty he“ shall pass sentence on him according to law, I take it that, if he“ acts under section 225, he must not record any conviction, for, if“ he does so, he is bound to pass sentence. Section 372 too seems“ to imply that both the finding and sentence must appear in the“ same judgment, and that they cannot be dissociated.”
The District Judge discharged the accused.
The Attorney-General appealed against the order.
Chitty, for the appellant.
No appearance for the respondents.
QUEEN v. MARSAL SILVA et al.D. C., Colombo, 1,428.
Cur. adv. vult.
( 51 )
oth October, 1897. Browne, A.J.—
The requirements of section 372 of the Criminal ProcedureCode alone are sufficient to show that the plea was in this caseunsustainable, for if there be no sentence added to the finding,the accused has never been so convicted that he could thereafterraise the plea.
This Court has, in 1 N. L. R. 73 and, 194, shown that a departurefrom the requirements of section 372, paragraph 2, in not specify-ing the offence of which a man is convicted, invalidates theconviction whereby (2 C. L. R. 79) a person might be very seriouslyprejudiced, who may have occasion thereafter to set up the pleaof autrefois convict or acquit. So, too, it is defective if it fails inthe other essential, and does not “ specify the punishment to“ which he is sentenced,” for the prisoner must have received“ judgment of imprisonment or the like, or if acquitted quod eat“ sine die ere either plea can be successfully taken.” (Roscoe’sEvidence, p. 189, 11th edition.)
The accused here were therefore never previously so convictedas to be able to plead that they had been. The order of the Courtbelow is set aside and the case is remitted for trial.
Set aside.
On a subsequent day Van Langenberg, for the first accused,moved that the case be relisted for argument, as the notice ofappeal by the Attorney-General was not served on his client, theFiscal having reported service on second accused, but not on firstaccused, as he was not to be found.
Browne, A.J., ordered the case to be relisted.
16th November, 1897, Ramanathan, S.-O., appeared for theCrown ; Van Langenberg for first accused.
19th November. Browne, A.J.—
On referring to the judgment of Coleridge, J., in R. v. Drury,18 L. J. M. C. 189, citing Lord Hole’s views, and the conclusion •therefrom in Starkie’s Crim. Plead, cited in Roscoe, quoted in myformer order, it will be found that the conclusion of the last-namedwriter is correct, and I therefore set aside the acquittal of thisaccused also and remit the prosecution for trial.
1897.
October 5 andNovember 19.