028-NLR-NLR-V-46-THE-KING-v.-LEWISHAMY-et-al.pdf
HOWARD C.J.—The King c. Lewiehamy.
01
[Court of Criminal Appeal.]
1945 Present: Howard C.J., Keuneman and Jayatlleke JJ.
THE KING «. LEWISHAMY, el al.
45—M. C. Badulla-Haldummulla, 225.
Unlawful assembly—Possession of stolen property—Inference of guilt—Mit-direction.
Where, in a charge of unlawful assembly, the only evidence against theaccused was the fact that certain property removed from the sceneof the offence was found in the possession of the accused, and, where thepresiding judge in his charge to the jury directed them as follows: —If you are satisfied these dishes and other articles were stolen propertyrif the accused was the sole occupant of the building in which the stolen-property was found and that the explanation given by him is not in youropinion a reasonable explanation, then it will be open to you, if you are-ik* disposed to draw the inference that the accused was a member of antixlawful assembly ….
Held, that there was a misdirection of law as the fact that the accused'were found in possession of stolen property leads to the inference thatthey were merely receivers of these goods and a.i such they would beentitled to an acquitta, eg the charge of being members of an unlawfulassembly.
A
PPEAL against a conviction by a Judge and jury before the MidlandCircuit.
N. M. de Silva for the appellants.
E. H. T. Gunasekera, C.C., tor the Crown.
Cut. adv. vult.
January 29, 1945. Howard C.J.—
In the cases of the twentieth and twenty-second accused the onlyevidence to implicate them in this charge of being members of an unlawfulassembly was the fact that certain property removed from the boutiqueswas found in the smithies of these two accused. In connection with thatevidence the learned Judge at pages 39 and 40 says—“ So upon thatruling, I think I may direct you that if you are satisfied that these dishesand the other articles were stolen property, if the accused was the soleoccupant of the building in which the stolen property was found, andthat the explanation given by him is not in your opinion a reasonableexplanation, then it will be open to you, if you are so disposed, to drawthe inference that the accused was a member of an unlawful assemblyand as such he broke into this Zakah Stores and or other stores and so-possessed himself of this property, while being a member of that assembly,and that-, if not he himself, others, were armed with deadly weapons, andthat they or some of them did use violence to get into the buildings fromwhich these things were stolen. That is the position in regard to thetwenty-second accused ”. A similar direction is given with regard to the-
HOWARD C.J.—The King o. Letcuhamy.
twentieth accused. The learned Judge, however, has not told the jury.that it is possible that the fact that the twentieth and twenty-secondaccused were found in possession of stolen property leads to the inferencethat they were merely receivers of these goods. If they were in factmerely receivers, they would be entitled to an acquittal on this charge ofbeing members of an unlawful assembly. We think that this was amisdirection and the convictions of these two accused, the twentiethand the twenty-second, must be set aside.
With regard to the ninth accused, the main evidence against him wasthat in his garden was also found property which was identified as havingcome from the boutique where this unlawful assembly took place. Therewas also some evidence that he was seen amongst persons who werein the boutique that night. On the other hand, the learned Judgethrew some doubt on the credibility of some of these witnesses; nor wastheir evidence accepted by the jury with regard to others of the accused■who were acquitted. In these circumstances it is possible that the Jurymerely looked at the testimonj- which established that the ninth accusedwas found in possession of property which had been stolen. We there-fore think that the conviction of the ninth accused must also be set.aside.
The appeals of these three accused are allowed.
Appealt allowed.