132-NLR-NLR-V-22-SILVA-v.-SIMON.pdf
( 443 )
1921.
Present: Shaw J,
SILVA v. SIMON.
170—P. C. Balapitiya, 48,956.
Penal Code, s. 449—Being armed with dangerous weapon with intent tocommit an unlawful act—Charge.
When a person is charged under section 449 of the Penal Codewith being armed with a dangerous weapon with intent to com-mit an unlawful act, the charge should allege what unlawful acthe was intending to commit. The Magistrate should also findwhen ho convicts what unlawful act the accused was about tocommit.
frJ^HE facts appear from the judgment.
Ameresekera, for second accused, appellant.—Section 449, asamended by section 2 of Ordinance No. 12 of 1900, provides for thepunishment of two offences. The appellant is charged with beingarmed with a dangerous weapon, to wit, a sword, with intent tocommit an unlawful act.
In the first place, the charge is defective, in that it does notdisclose what particular unlawful act the appellant intended to com- ,mit. In the second place, the burden of establishing the appellant’sspecial intention to use the sword for the purpose of committing aparticular unlawful act is on the prosecution. That burden has notbeen discharged, and the Magistrate has not found that the appellanthad any special intention to commit a particular unlawful act.
The law as stated in Silva v. Charles1 in regard to the offence withwhich the accused is charged is unaffected by the amending Ordi-nance, and it is now well-established law that in order to sustain aconviction under this charge there must be proof of a special intentto do a particular illegal act (vide also 16 N. L. R. 456).
February 22,1921. Shaw J.—
In this case the second accused was charged under section 449of the Penal Code with being armed with an offensive weapon,to wit, a sword, with intent to commit an unlawful act. He wasconvicted and sentenced to six months’ rigorous imprisonmentand to'a fine of Ks. 100 or further six weeks’ rigorous imprisonment.It appears from the evidence, which has been believed by the
1 (1896) 2 N. L. B. 164.
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Magistrate, that the police at about 11 o’clock at night made a raidupon a wadiya, where they suspected that a certain man namedCornelis, who was an absconder from justice, was concealed. Atthe wadiya they found a man named Anis Silva, the accused, andthe absconder. The absconder ran away, and has not been arrested.Anis Silva was arrested, and in his waist was found a jemmy. Theappellant was arrested, and before he was arrested he threw awaya sword which was in his possession. The appeal, in so far as itrelates to the facts, must, in my opinion, fail. There is sufficientevidence to enable the Magistrate to come to the conclusion that hedid, that the sword was in the possession of the appellant, but thereappears to me to be two objections to this conviction on a pointof law. The section provides for the punishment as “ Whoeveris found having in his custody or possession without lawful excuse,the proof of which lies pn him, any instrument for house-breaking,or being armed with a dangerous or offensive weapon with intentto commit any unlawful act.” .
There are two offences in that section, namely, the one being Inpossession of house-breaking implements without lawful excuse,and the other of being armed with a dangerous or offensive weaponwith intent to commit an unlawful act. It is this second offencethat this accused is charged with. In my opinion the charge inthe present case is not a good one. It is necessary in framing thecharge to give information to the accused of the offence which heis said to have committed, and it is necessary, in my view, thatwhen a person is charged under this part of this section, the chargeshould allege what unlawful act he was intending to commit.There is another objection to the present case, namely, that theMagistrate has not found what unlawful act the appellant wasabout to commit. It seems to me that it is necessary in a chargeunder this part of the section for it not only to be alleged in thecharge, but that it should be found by the Magistrate that theaccused was about to commit some unlawful act, either house-breaking or rioting or an attack upon some other person or someother unlawful act. This view seems to me to be supported by thecase of Silva v. Charles1 and the decision in The King v. Per era® Thatcase, although it shows that the law as stated in Silva v. Charles1is now different with regard to house-breaking instruments, thelaw stated in the earlier case is still good with regard to the secondoffence in section 449 of the Code, the offence of being armed witha dangerous weapon with intent to commit an unlawful act.
The conviction of the appellant must,1 in my opinion, be setaside.
Set aside.
1921.
Shaw J
Silva vSimon
1 {1896) 2 N. L. B. 16&
(1918) 16 N. L. B. 456.