R v Kozi Makokwa (Criminal Appeal Case 56 of 1942) [1942] ZMHCNR 4 (31 December 1942)

210 Vol. II] R. v. KO ZI M A K O K W A . Criminal Appeal Case No. 56 of 1942. Embezzlement—general deficiency—essential to prove the theft o f some pearl of the sum deficient. In this case accused was charged with stealing a certain sum o f money. At the trial it was not proved that he had stolen any o f the money but only that there was a general deficiency. The accused was convicted o f theft but on appeal the H igh Court quashed the conviction. Where there is a charge o f embezzlement the particulars o f the charge should contain the specific gross sum which the accused is charged with embezzling. See also R. v. M ilim o James, p. 94 ante', R. v. Samuel Banda, p. 181 ante; Abel Kabaya v. The K ing 5 N . R. L. R. 13, all o f which cases and the present one should be read in the light of R. v. Lawson 36 Cr. App. Rep. 30, 1952, 1 A . E . R . 804, and R. v. Tomlin 38 Cr. App. Rep. 82, 1954, 2 A . E . R . 272. Law, C. J.: The law in cases o f this nature is to be found in Archbold, 1938 Edition, p. 621, and, in particular, reference m ay be made to the case of Rex v. Sheaf, 19 C. A. R., p. 46, in the headnote to which it is said: " Proof of a general deficiency without reference to specific dates may not be sufficient to support an indictm ent for fraudulent conversion. A general verdict o f guilty on an indictm ent with a count bad in law is bad.” On page 49 of that report, Mr. Justice A vory stated: “ Reference to the authorities relating to embezzlement, in which it has been made clear that it is not sufficient to charge the embezzlement o f a general deficiency unless it appears that by the conduct or course o f business it was the duty o f the defendant on the date specified to hand over the lump sum which he had received, makes it clear that these two counts in the circumstances o f the case were bad in law and ought to have been withdrawn from the jury.” 2. Section 174 o f the Criminal Procedure Code, which permitted a charge on a general deficiency, was repealed by section 22, Criminal Proce­ dure Code (Amendment) Ordinance, 1940. In the present case the only fact which was charged and proved was a general deficiency. F or the reasons given above, this is not sufficient to sustain the conviction o f the accused under sections 243/249. Accordingly the conviction, is quashed and the sentence set aside. The Attorney-General has intim ated that he does not desire to support the conviction. 3. In the circumstances, owing to the repeal o f the form er section 174, Criminal Procedure Code, the case o f R ex v . Mardon Mateche (N. R. L. R., 1931-1937, p. 98)1 can no longer be accepted as authority in such cases. 1 Not now reported.