Rex v Kimingi (Criminal Appeal No. 68 of 1947) [1947] EACA 72 (1 January 1947)

## APPELLATE CRIMINAL

## Before NIHILL, C. J., and DE LESTANG, AG. J.

## REX, Respondent (Original Prosecutor)

$v$ .

## STANLEY NJEROGE S/O KIMINGI, Appellant (Original Accused) Criminal Appeal No. 68 of 1947

- Criminal law-Storebreaking-S. 300 (1), P. C.-Conviction for receiving not permissible—S. 179 (1), C. P. C.—S. 187, C. P. C. - Held (9-5-47).—That on a charge of storebreaking contrary to S. 300 (1), P. C., it is not open to the Court to convict of receiving.

Appeal allowed.

Case referred to: Rex v. M. V. Patel and another, 16 K. L. R. 130.

Appellant present unrepresented.

Todd, Crown Counsel, for the Respondent.

JUDGMENT.—The appellant appeals against his conviction for storebreaking, i.e. breaking into a store and committing therein the felony of theft, contra section 300 (1), Penal Code.

There was no direct evidence at the trial to connect the appellant with the actual storebreaking but the Magistrate presumed from the fact that he and two or three other Africans were found in possession of the stolen articles a few hours after the offence was committed, that he must have taken part in it. We have been asked by the learned Crown Counsel to uphold the Magistrate's finding. We are unable to do so in the particular circumstances of this case. It may very well be that in a proper case it would be quite reasonable to draw an inference of guilt to storebreaking on evidence of very recent possession but in the instant case it is not possible to do so for the following reasons-

- $(a)$ because the appellant gave an explanation which may reasonably be true as to how he came to be connected with the stolen property and not only is such explanation not contradicted by evidence but it is partly accepted. by the Magistrate and is corroborated by the appellant's co-accused and other witnesses. If his explanation is believed it conclusively proves that he had no hand in the storebreaking: - $(b)$ as the appellant was not in exclusive possession of the stolen articles any of his co-possessors could have committed the offence and not necessarily the appellant.

For these reasons we think that the evidence in this case does not support a conviction for storebreaking against the accused and his conviction for that offence cannot stand.

We have considered whether it was open to us to alter the conviction to one of receiving stolen property contra-section 315 (1), Penal Code, and have decided that it is not.

It was held in Rex v. Maganbhai Valabhai Patel and Haribhai Apabhai Amin, 16 K. L. R. 130, that on a charge of storebreaking an accused person could not be convicted of receiving and with this decision we respectfully agree. This was a decision under the old section 174 of the Criminal Procedure Code, which reads as follows:

"When a person is charged with an offence, and part of the charge is not proved, but the part which is proved amounts to a different offence, he may be convicted of the offence which he is proved to have committed, although he was not charged with it".

It corresponds to, but is not identical with, section 179 (1) of the present Code, which provides: $-$

"When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it".

As, however '(a comparison of both sections will show), section 174 of the old Code is couched in much wider language than the present section—the decision applies with greater force to the present case.

Quite apart from authority it is clear that section 179 (1) of the Criminal Procedure Code cannot be invoked to support a conviction for receiving on a charge of storebreaking because the former is not a minor offence to the latter both offences being punishable with imprisonment for seven years. Neither can section 187 of the Criminal Procedure Code, which authorizes a conviction for receiving on a charge of "stealing" be invoked since storebreaking is a distinct offence from stealing.

The appeal is allowed. The conviction and sentence are set aside and the appellant is ordered to be set at liberty.