Jonathan Phiri v The Queen ((1963 - 1964) Z and NRLR 24) [1964] ZMHCNR 8 (31 January 1964)

JONATHAN PHIRI v THE QUEEN (1963 - 1964) Z and NRLR 24 1963 - 1964 Z and NRLR p24 [Before the Honourable Mr. Jus�ce RAMSAY, Ac�ng Judge on the 31st January, 1964.] Flynote Atempted the� - subject mater of the charge - sec�ons 243 and 352 of the Penal Code. Headnote The charge for atempted the� need not specify the actual property. Cases cited: (1) R v Johnson and Anderson 10 Cox CC 13. (2) R v Brown 24 QBD 357. W H Walker, Crown Counsel for the Crown The appellant appeared in person. Judgment Ramsay Ac�ng J: The appellant was convicted of the atempted the� of a handbag contrary to sec�ons 243 and 352 of the Penal Code, and he was sentenced to three months imprisonment with hard labour. He has appealed against convic�on and sentence. The facts as found by the learned resident magistrate are that a Mrs. Arnold discovered the appellant in the office where she worked with his hand inside her handbag which she had le� on a filing cabinet. The appellant's appeal is on the ground that he was there looking for employment, and did not atempt to steal. The magistrate considered this defence which the appellant had made in an unsworn statement from the dock, and he rejected it. There is no possible reason for me to interfere with this decision. The facts, however, indicate that the appellant was not atemp�ng to steal the handbag but was atemp�ng to steal from it. Archbold (35th edition) paragraph 1513 concludes with the following words: "In an indictment for an atempt to steal it is sufficient to aver that the prisoner atempted to steal the goods of AB without specifying the par�cular goods: R v Johnson, L. & C. 489." This case is reported more fully as R v Johnson and Anderson 10 Cox CC 13. Omi�ng the nineteenth century verbiage, the indictment was: ". . . Ephraim Johnson and Walter Anderson on 27th April, 1864, the goods and chatels of Thomas Roe, in the dwelling - house of the said Thomas Roe . . . in Brighton . . . did atempt feloniously to steal . . ." Pollock, CB, delivering the judgment of the court said: "We are all of the opinion that the convic�on is right. Where an indictment charges an actual stealing in a dwelling - house the goods must be specified; but where an atempt to 1963 - 1964 Z and NRLR p25 RAMSAY AJ steal only is charged, it is not necessary to specify the goods in the house, for it cannot be said beforehand what the prisoner intended to steal." It is strange that Archbold's authority should be a case 100 years old. I myself have tried to find a more recent authority, but I have had no success. Pollock, CB, concluded his judgment with the following words: "It would be necessary to prove that there were goods in the house which he could have stolen." In 1889, however, the court for Crown Cases Reserved, consis�ng of seven High Court judges in R v Brown 24 Q. B. D. 357 at page 359, unanimously declared that where a man put his hand into another's pocket, and there was nothing in the pocket which he could steal, he could be convicted of an atempt to steal. I therefore am of opinion that the par�culars of the charge in the case before the court should have been: "Jonathan Phiri on the 5th day of December, 1963, at Ndola . . . did atempt to steal from the handbag of Efrat Arnold . . ." The misdirec�on of the property stolen would have been fatal if an actual the� had taken place, but in atempted the� no specifica�on of the actual property is necessary. The atempted the� of the handbag would have included the atempted the� of its contents, and the men�on of the handbag indicated to the appellant plainly the type of atempted the� with which he was charged. I do not consider that the appellant has been prejudiced in any way by the wording of the charge, and there has been no miscarriage of jus�ce in this par�cular case. I therefore dismiss the appeal against convic�on. The magistrate found the appellant guilty of atempted the� contrary to sec�ons 243 and 352 of the Penal Code, and he omited what it was that the appellant had atempted to steal. In exercise of the powers conferred on me by sec�on 300 (1) (a) (ii) of the Criminal Procedure Code, I alter this finding by adding to it the words, " in that he atempted to steal from the handbag of Efrat Arnold ". This altera�on in the finding does not affect the sentence in any way. A sentence of three months imprisonment with hard labour is not inappropriate for a first offender for an atempted the� of this nature. I also dismiss the appeal against sentence.