R v Benson Mbewe (Criminal Review Case 224 of 1939) [1939] ZMHCNR 7 (31 December 1939)

58 Vol. II] R. v. BENSON MBEWE. Criminal R eview Case N o. 224 of 1939. Crim inal Procedure Code section 168— conviction o f offence lesser than the offence charged. The facts appear from the judgment hereunder. As to the meaning to be attributed to the words “ minor offence ” see R. v. E. Mumbi Chilao 5 N . R . L . R . 459. R ob in son , A . C . J .: In this case the accused was charged with an offence contra section 249 Penal Code (theft by a servant). The Magis­ trate came to the conclusion that there was insufficient evidence o f theft but a clear case had been made out o f neglect o f duty contra section 75 (2) o f Cap. 621 2 (Employment o f Natives Ordinance). Therefore he invoked section 169 Criminal Procedure Code and convicted the accused o f the latter charge. I am afraid the true function o f section 169 Criminal Procedure Code2 has been misunderstood. A good clue to it is to be found in the marginal note which reads “ when offence proved is included in offence charged” ; Now the offence charged is theft and the definition o f theft is found in section 236 Penal Code. It is difficult to illustrate the point perhaps with theft because there must be a fraudulent taking or conversion, but take, for instance, section 220 Penal Code: “ Assault causing actual bodily I f the actual bodily harm cannot be proved, section 169 Criminal harm ” , Procedure Code can be invoked to substantiate a conviction for simple assault, section 219 Penal Code. The greater includes the less. But in this case, section 75 (1) o f Cap. 62 has no relation at all to the I hope I crime o f theft and therefore section 169 has no application. have made m yself clear. The conviction must be quashed. The correct way w ould have been to have found the accused not guilty on the charge o f theft and then to have charged him again quite distinctly on a charge contra Cap. 621; he had never been in peril o f that latter charge as he w ould have been in a case where section 169 could properly have been invoked. 1 Now Cap. 171.—Editor. 2 Now section 168 Criminal Procedure Code—Editor,