Harrison Zimba v The People (Appeal No. 74 of 1969) [1970] ZMCA 11 (14 January 1970)

HARRISON ZIMBA v THE PEOPLE (1970) ZR 101 (CA) COURT OF APPEAL DOYLE CJ, PICKETT JA AND MUWO AGJ 15 14th JANUARY 1970 Appeal No. 74 of 1969 Flynote Criminal law and procedure - Charge - Particulars of offence - Omitting essential ingredient of offence - Offence not disclosed - Defect incurable on appeal. 20 Headnote The appellant was charged with attempted housebreaking contrary to ss. 271 and 352 of the Penal Code. The particulars alleged that the appellant attempted to break into the dwelling house of one Stephen Muntangola. However no mention was made in the particulars of the fact that the attempted entry was accompanied by an intention to 25 commit a felony therein. The appellant appealed against the conviction and sentence. On appeal: Held: (i) Failure to mention in the particulars the fact that the appellant's entry or attempted entry was accompanied by an intention to 30 commit a felony therein was a material defect that the charge disclosed no offence. (ii) Such defect was a material defect and could not be corrected on appeal. (iii) Conviction and sentence quashed. 35 Case referred to: (1) R v Herschel, 1920 AD 575. Legislation referred to: Penal Code, 1965 (Cap. 6), ss. 271 and 352. Judgment Pickett JA: delivered the judgment of the court. 40 In this case the appellant Harrison Zimba was charged with the offence of attempted housebreaking, contrary to ss. 271 and 352 of the Penal Code, and the particulars of the charge alleged that on the 24th February, 1967, at Luanshya, he did attempt to break into the dwelling 1970 ZR p102 PICKETT JA house of Stephen Muntangola. An essential part of the offence of housebreaking is that the entry or attempted entry must be accompanied by an intention to commit a felony therein. In this case no statement of any such intent appeared in the particulars of the charge. In the well - known South African case of R v Herschel (1), pp. 580 and 581, the learned Chief Justice observed: "I do not think that any Court of Appeal would be justified in allowing a conviction to stand upon a charge sheet which disclosed no offence. 10 Material defects of such a nature that the charge discloses no crime may be relied upon on appeal, even though the point was not taken at the trial." In the present case the charge sheet disclosed no offence and it was not possible to correct this on appeal to the High Court as the judge in 15 that court purported to do. Accordingly this appeal will be allowed, the conviction and sentence quashed and the appellant set at liberty. Appeal allowed