Rex v Lohinda (Con. C. 789/1932.) [1932] EACA 11 (1 January 1932)

#### CRIMINAL CONFIRMATION.

### Before LUCIE-SMITH, J.

#### REX

#### $\cdot \, v.$

# MASANGA s/o LOHINDA.

## Con. C. 789/1932.

The Penal Code, section 167 (4)—Rogues and vagabonds— "Visible means of subsistence."

Held (18-2-33): -That visible means of subsistence and failure to give a good account of himself are two totally different things, and<br>there must be evidence on the record that the accused person lacked visible means of subsistence...

Lewey, Crown Counsel, for Crown.

Lewey referred to the Vagrancy Act, 1824, section 4.

ORDER.—This case comes before the Court on confirmation from the Resident Magistrate's Court, Mombasa.

The accused was charged with an offence under section 167 (4) of the Penal Code, found guilty, and sentenced to nine months' hard labour.

The relevant section reads: "Every suspected person or reputed thief who has no visible means of subsistence and cannot give a good account of himself shall be deemed to be a rogue and a vagabond, etc."

Section 4 of the Vagrancy Act, 1824, has been referred to. This section reads: "Eyery suspected person or reputed thief frequenting, etc., with intent to commit a felony," and it has been specially enacted by section 15 of the Prevention of Crimes Act. 1871, that as regards the proving the "intent to commit a felony" it shall not be necessary to show that the person suspected was guilty of any particular act or acts tending to show his purpose or intent, and that he may be convicted if, from the circumstances of the case and from his known character as proved to the Court, it appears to the Court that his (the accused's intent was to commit a felony.

It appears to me that before a Court can convict under section 167 (4) of the Penal Code it must be satisfied by evidence (1) that the accused is a suspected person or reputed thief, $(2)$ that he has no visible means of subsistence and, (3) that he cannot give a good account of himself. Taking the above as the three points necessary to a conviction we will now turn to the record.

Chief Sub-Inspector Said states on oath that the accused is a reputed thief, and he was not cross-examined thereto-Point (1) is satisfied. Second Class Constable Okoyo states how he came to see the accused and describes his conduct. He further states that when challenged accused said that he was going to work and that he worked for a Goan. On being asked to show the Goan's house the accused refused. This evidence I think might justify the learned Magistrate in saying that he was satisfied as'regards the third point, i.e., failure to give a good account of himself.

It was suggested in argument that the Magistrate was also justified in finding from this evidence that the accused was in fact without visible means of subsistence; with this contention I am unable to agree. Visible means of subsistence and failure to give a good account of oneself are two totally different things. I might have an income of thousands a year and yet on occasion be unable to give a good account of myself.

There being no evidence on the record to support a finding that the accused was without visible means of subsistence I amof opinion that the Crown have failed to prove their case. There was, I think, evidence to support a charge under section 167 (5) had one been brought. The conviction and sentence must be set aside.