Ismail Muhamed and Another v The People (HLA/22/1971) [1971] ZMHC 10 (3 September 1971)

ISMAIL MUHAMED AND ANOTHER v THE PEOPLE (1971) ZR 108 (HC) I HIGH COURT 40 DOYLE CJ 3rd SEPTEMBER 1971 (HLA/22/1971) Flynote ■ Criminal law and procedure - Theft - Accused charged with completed 45 offence but convicted only of attempt to commit the offence - Whether conviction proper. 1971 ZR p109 DOYLE CJ Headnote The appellants were charged with theft of a welding machine. There was evidence that the accused had pushed the machine a distance of one hundred yards with a view to stealing it. The trial magistrate convicted them of attempted theft. I Held: 5 Where persons have committed a complete offence and have only been convicted of an attempted offence, the conviction can stand for an offence begins with an attempt. Rogers v Arnott (1) distinguished. I Cases cited: 10 (1) Rogers v Arnott 44 Cr. App. Rep. 195. ■ ■ ■ S Singareyer, Legal Aid Counsel, for the appellants. Miss L P Chibesakunda, State Advocate, for the respondent. Judgment Doyle CJ: In this case, the evidence for the prosecution mainly depended on that of the witness Smart Mbande. His evidence was that 15 he saw two people moving the welding machine which is alleged to have been stolen. He grappled with one of them, the second appellant, and the other man came and tried to rescue the person whom he was holding. He arrested the second appellant and later identified him and the other man, the first appellant, in court at the trial. The first accused who had 20 not been arrested by Smart Mbande, was found sleeping in his vehicle, but that was on the next morning. The magistrate did not, in fact, direct himself as to the question of identification of the first accused. Clearly Smart had a very short time in which to see and recognise him. However if Smart's evidence 25 is to be believed, and it was believed, there were two persons involved in the crime, and it is plain that if there were two persons, then the other person was the first accused. I consider that the evidence was sufficient, and I find that the two appellants were involved in this crime. The learned magistrate has however stated and the evidence has 30 supported it, that the two accused had pushed the machine for a distance The evidence of Maxwell Chikoko shows that the machine was found 100 yards from where it had been left the previous night. The learned magistrate convicted both appellants for attempted theft and acquitted them on the complete charge. It is plain that the complete offence had been 35 committed, but I do not think that in the circumstances I have power to alter the finding and substitute a finding of theft for a finding of attempted theft. The learned magistrate has acquitted them on the complete charge. The question therefore remains that where persons have committed a complete offence, and only been convicted of an attempted offence, 40 whether that conviction can stand. In my opinion it can, and I think it would be absurd if I had to acquit these two persons on the grounds that they had been convicted only of attempting a crime which they did in fact commit. The offence begins with an attempt. When the crime is completed, there I is a merger of the attempt in the full crime. I see no 45 ■ ■ ■ 1971 ZR p110 DOYLE CJ reason why the attempt should not again be separated from the complete offence when there has been an erroneous acquittal on the full offence. Accordingly I dismiss the appeal. The sentence is not too great. Rogers v Arnott (1) appears to be against my opinion, but it can be distinguished 5 in that the full offence was not charged, and there was no acquittal on it. Appeal dismissed I