Rex v Mathenge (Criminal Appeal No. 147 of 1946) [1946] EACA 60 (1 January 1946)

## APPELLATE CRIMINAL

Before SIR JOSEPH SHERIDAN, C. J., and DE LESTANG, Ag. J.

## REX, Respondent

v.

## THANGA s/o MATHENGE. Appellant Criminal Appeal No. 147 of 1946

Criminal Law-Procedure-Evidence of previous convictions before judgment-Failure of justice-Burglary and theft-Conviction of "possession of stolen property contrary to S. 315 (2) Penal Code"—Duplicity in conviction.

The appellant, an old offender with a long list of convictions, was charged with the offences of burglary and theft of a large number of articles from a house at Limuru. Shortly after the burglary his house was searched and nothing of an incriminating character was found. On a second search an old face towel identified by the occupiers of the house as being their property was found. At the conclusion of the evidence the previous convictions of the appellant were put to him and he admitted them. The Magistrate then took time to consider the judgment which he delivered five days later. He accepted the evidence of identification of the towel and although he considered the evidence "flimsy" he convicted the appellant "for being in possession of this stolen property—Sec. $315$ (2) a minor offence to that charged".

The appellant appealed.

Held (20-7-46).-(1) When a conviction rests on flimsy evidence it is all important that there should be no reference to the previous criminal history of an accused person before he has been found guilty of the offence charged or of some other offence of which he might competently be found guilty.

(2) The conviction is bad for duplicity as it does not specify whether the appellant was found guilty of "receiving" or "retaining" stolen property.

Appeal allowed.

Case referred to: Rex v. Hamisi Sudi 20 K. L. R. 85.

Appellant present, unrepresented.

Dennison, Crown Counsel, for the Crown.

JUDGMENT.—At the conclusion of the hearing of this appeal the Court was left in considerable doubt as to whether the conviction could be sustained. Learned Crown Counsel frankly admitted that he had a sense of uneasiness in the matter.

The accused, an old offender with a long list of previous convictions against him, was charged with the offences of burglary and stealing from a house at Limuru. Shortly after the burglary his house was searched and nothing of an incriminating character was found. On a second search an old face towel identified by Mr. and Mrs. Coates as their property was found. As to why this article was not found on the occasion of the first search, the explanation given by the police was that the search on the first occasion was limited to looking for keys. This seems odd for according to the Charge Sheet three small hand towels appear in the list of articles charged as having been stolen. The particulars of the articles said to have been stolen are, according to the Charge Sheet, as follows:-

"One rug, four pairs of curtains, one cushion, one table cloth, two bed spreads, one basin, nine table mats, two mirrors, three small hand towels."

The towel produced in evidence is the only evidence which can be said to connect the accused with the crime. It is old, of a common pattern and might easily belong to any person however lowly his state. Mr. Coates said that the towel was one of those stolen but could not identify it by any particular marks. Mrs. Coates claimed the towel as theirs and identified it by general appearance and tears. The Magistrate accepted this evidence of identification which in our opinion, having seen the towel, is not very satisfactory. The possibility of Mrs. Coates being mistaken in the case of an old towel of a common pattern, now of no real value and lacking any initials or dhobi marks, cannot be excluded.

The Magistrate's opinion of the evidence is contained in the words. "I must. flimsy though the evidence be, hold that this towel was indeed stolen property and it is the only evidence in the case". Where a conviction rests on such evidence it is all important that there should be no reference to the previous criminal history of an accused person before he has been found guilty of the offence charged or of some other offence of which he might competently be found guilty. The evidence in the case concluded on the 12th April, 1946, and immediately on its conclusion the Magistrate questioned the accused as follows: -

"O. You have heard this statement read—of previous convictions. What have you to say?

$A$ . I admit they are all correct.

$Q$ . Anything more to say?

$A. No.$

The Magistrate then took time to consider his judgment which he delivered $\ldots\\$ on the 17th April, 1946. In the circumstances of this case there can be little doubt that the reference to the accused's previous criminal history may have prejudiced his case. It is abundantly clear that had such a thing occurred with a jury, the quashing of a verdict of guilty would have resulted.

The case against the accused on the conclusion of the evidence was one requiring careful consideration which it appears to have received and his guilt was by no means clear. He was in fact acquitted of the offences charged. In the result the accused was convicted of being in guilty possession of the towel contrary to Section 315 (2) P. C. The finding does not specify whether he was found guilty in respect of a receiving or a retaining, so that even though it is unnecessary to decide the point, such a finding might well be considered bad for duplicity. On this point is was decided by this Court in the case of $\text{Re} x \nu$ . Hamisi Sudi, Criminal Appeal No. 66 of 1942, Circular to Magistrates No. 21 of 1942. 20 K. L. R. $85:$ —

"It has been decided by this Court time and again that a conviction for receiving or retaining with guilty knowledge is bad for duplicity. Had the Magistrate referred to Circular to Magistrates No. 2 of 1942 he would have immediately appreciated the point. The conviction being bad for duplicity it is unnecessary for us to do any more than set aside the conviction and sentence and discharge the accused and order a refund of the fine. We will say, however, that had we had to deal with the merits on the finding of the Magistrate that there had been no receiving, an argument might have been founded on that finding that the accused was entitled to be acquitted."

For the reasons we have stated the accused will be acquitted and the sentence set aside.