R v Milimo James (Criminal Review Case 170 of 1940) [1940] ZMHCNR 8 (31 December 1940)

94 Vol II] R. v. MILIMO JAMES. Crim inal R e v i e w C a s e N o . 170 o f 1940. Embezzlement—fraudulent conversion—general deficiency—proof o f th eft- form o f indictment for offence committed during a period -revision of case when accused acquitted— " doubt " , to ju stify acquittal, must be “ reasonable Prior to the coming into operation o f the Criminal Procedure Code (Amendment) Ordinance, 1940, it was possible b y virtue o f the provisions o f section 174 o f the Criminal Procedure Code to charge theft on a general deficiency. The Criminal Procedure Code (Amend­ ment) Ordinance repealed section 174 and the present case should now be considered in the light o f R . v. Lawson 36 Cr. App. Rep. 30, 1952 1 A. E. R. 804, and R. v. Tomlin 38 Cr. A pp. R ep. 82, 1954 2 A. E. R. 272. As also should the cases o f R . v. Samuel Banda p. 131 post] R. v. Kozi Makokwa p. 210 post; and Abel Kabaya v. The King 5 N . R. L. R. 13. Where the offence o f fraudulent conversion or embezzlement is committed between two dates this should be so stated in the charge. The form o f so stating it should not be “ during the m onth o f ...........” but, e.g., “ between 1st January and the 31st January (See R. v. Best Chipoka 5 N . R . L. R . 685.) To enable a Court to acquit an accused person, the Court must have a “ reasonable doubt ” as to his gu ilt; it is n ot sufficient that the Court has a “ doubt ” , Where a Subordinate Court has acquitted an accused person o f a charge it is not open to the High Court to interfere with the finding on revision even i f the H igh Court is o f the opinion that the finding o f the Subordinate Court was wrong. Law , C . J .: The accused properly accounted to a D istrict Officer for a cash balance o f £5 3s. 3d. at the end o f A pril. The accused’s accounts were audited by a Government auditor on the 23rd M ay when the cash in hand was found to be £3 16s. 9d. According to the books kept by the accused the cash balance should have been £11 4s. 9d. on that date. There was a shortage, therefore, o f £7 8s. Od. There is no suggestion that the books were not kept correctly. The accused was consequently prosecuted for and charged w ith theft o f £7 8s. 0d. during the month of May, under sections 243/249 Penal Code. In view o f section 174 Criminal Procedure Code the charge should have been fram ed to read “ between the 30th April, 1940, and the 23rd May, 1940 ” instead o f “ during the month o f May ” . The charge was nevertheless substantially correct. The case against the accused was one o f theft by w ay o f a “ general deficiency ” o f £7 8s. 0d. [Vol. II 2. The real question which presents itself in a case o f general deficiency is the nature of proof required in order to establish the charge against the person accused of the offence. In Rex v. Groce (1835), 1 Mood, p. 447 ; 7 C. and P., p. 635, a majority of judges decided that an indictment for embezzlement might be supported by proof of a general deficiency o f moneys that ought to be forthcoming, without showing any particular sum received and not accounted for. In Regina v. Jones (1838) 8 C. and P., p. 288, Alderson, B. said, “ Whatever difference o f opinion there might be in the case of R. v. Grove, that proceeded more upon the peculiar facts o f that case than upon the law. It is not sufficient to prove at the trial a general deficiency in account. Some specific sum must be proved to be embezzled, in like manner as in larceny some particular article must be proved to have been stolen.” In The. Queen v. Chapman (1843) 1 Cox, p. 47, Williams, J. said, “ It is necessary, in all these cases, to show that money received by the prisoner for the use o f the prosecutor has been feloniously abstracted by the prisoner. I will not act on the case o f R. v. Grove.” In the case o f The Queen v. Lambert (1847) 2 Cox, p. 309, Erle, J. said, " I think the offence is sufficiently made out if the jury are satisfied that the prisoner received in the aggregate the amount with which he appears to have charged himself, and that he absconded, or refused, when called upon to account, leaving a portion o f the gross sum deficient” . In Regina v. Walstenholme (1869), 11 Cox, p. 313, it was held that to support a charge o f embezzlement against the secretary o f a company, whose duty it was to receive moneys and pay wages, etc., out o f the said moneys, and to account for the balance, proof must be given of a specific appropriation of a particular sum of money. In that case, B r e t t , J. said to Counsel, "Y ou must show that he (i.e., the accused) received certain amounts; that it was his duty to account for them; that he did not do so.” In Thomas Coles (1910), 5 Cr. A. R., p. 36, it was held that, on an indictment for embezzlement, if the prisoner admits that he has the sum charged, he cannot set up the defence o f “ general deficiency ” . In Robert Ernest Sheaf (1925), 19 Cr. A. R., p. 46, it was held that proof of a general deficiency without reference to specific dates may not be sufficient to support an indictment for fraudulent conversion. At page 49 of that report, A v o r y , J. said, “ Reference to the authorities relating to embezzlement, it has been made dear that it is not sufficient to charge the embezzlement o f a general deficiency unless it appears that by the conduct or course of business it was the duty o f the defendant on the date specified to hand over the lump sum which he had received.” It seems clear, from the foregoing decisions, that the fact of a general deficiency is not in itself proof o f the alleged offence, but must be supported by specific evidence or presumptive proof of some act o f theft of part of that amount within the period charged. It is in this sense, therefore, that I would understand the decision in Rex v. Mar don Mateche, N. R. Reports, 1931-1937, p. 98. 3. In the present case, and before the audit, the accused told the auditor that he had £9 cash in hand. This was not true, he had only £3 16s. 9d. On the authority o f Thomas Coles’ case (vide supra) this false statement by the accused was sufficient to convict him, because the £5 3s. 3d. (that is, £9 less £3 16s. 9d.) was part o f the £7 8s. 0d. the theft o f which he was charged. The accused should, therefore, have been convicted and not acquitted. Vol. II] 4. T he accused’s defence was described by the Magistrate as, at It was a fantastic story, from first sight, a “ cock and bull ” story. beginning to end. I t suggested that someone had visited the accused’s quarters at night, crept through an aperture over the locked door, abstracted the keys o f the safe and the office from his trouser pocket, com m itted the offence (only taking part o f the cash) and then reversed the process in order to replace the keys. The Magistrate has, quite properly, looked for points in favour o f the accused, and, in this connection, rem arks that there had been no attempted falsification by the accused o f his accounts, that the audit was not a " surprise audit ” , that there had been no suggestion that the accused was in difficulties through gambling or living above his means, and that the accused had given his evidence on oath in an impressive maimer. The Magistrate seems to have over­ looked, however, the accused’s own evidence that the D istrict Officer authorised an advance to him o f £4 at the beginning o f April in order to get married, the amount to be repaid in certain instalments by the end o f August. This loan is reflected in the trial balance, E x. A . In May, therefore, the accused had to support not only him self but also a wife on a reduced salary. In the latter portion o f his judgm ent, the Magistrate gives the impression that he was considerably influenced b y the accused’s story o f his dream in which an escaped convict was concerned with a theft. Curiously enough, the accused had this dream the night before the audit. Though the Magistrate rightly describes the story as having some obvious weaknesses, yet it had the effect o f creating in his mind a belief in the possibility that a particularly audacious and cunning thief with ‘'in s id e ” knowledge had actually car ri ed ou t this theft. The Magistrate stated that he had a doubt in his m ind and consequently acquitted the accused. I would point out, however, that it is not a doubt but a reasonable doubt which entitles an accused person to an acquittal. The accused having been acquitted, however, the H igh Court has no power to interfere in Revision. 5 5. In conclusion I would express astonishment that these oases do not more frequently arise. Poorly paid clerks are faced with temptation. Their salaries are frequently not commensurate w ith their responsibilities. The accused’s salary was £2 a m onth; considerable sums passed through his hands. He was put in com plete charge o f all m oneys paid into and paid out o f the Livingstone N ative Treasury w ith infrequent supervision. He was allowed to keep the keys o f the safe. I t is surprising that the shortage on this occasion was not greater.