Rex v Mukasa (Criminal Appeal No. 5 of 1940) [1940] EACA 10 (1 January 1940)

## COURT OF APPEAL FOR EASTERN AFRICA

### Before SIR JOSEPH SHERIDAN, C. J. (Kenya), WHITLEY, C. J. (Uganda) and WEBB. C. J. (Tanganvika)

#### REX. Respondent

# JOHN MUKÁSA, Appellant Criminal Appeal No. 5 of 1940

## (Appeal from decision of H. M. High Court of Uganda)

Uganda Criminal Procedure—Theft by servant or agent—Theft of cattle by person entrusted with their care—Uganda Penal Code, sections 266 and $271(b)$ — Charge—Meaning of gross sum in section 185, Uganda Criminal Procedure Code

Appellant was convicted by a subordinate court under section 266 of the Penal Code of the theft of a large number of catte between 27th March, 1939. and 29th August, 1939. These cattle had been entrusted to his care by the owners and this was averred in the charge. In the course of an appeal which was dismissed the High Court considered the question as to whether it was permissible to lay the charge for the total number of cattle stolen between those dates or whether it was necessary to set out each particular theft and its date. This point was based upon whether section 185 of the Criminal Procedure Code referred only to moneys. Appellant further appealed.

- Section 185 provides: When a person is charged with any offence under sections 268, 269, 270 and 271 of the Penal Code it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to have been committed without specifying particular items or exact dates. - Section 271 of the Penal Code provides: If the thing stolen is property which has been entrusted to the offender either alone or jointly with any other person for him to retain in safe custody or to apply, pay, or deliver for any purpose or to any person the same or any part thereof or any proceeds thereof, the offender is liable to imprisonment for seven years. - Held $(6-2-40)$ .—(1) That the appellant ought to have been convicted of an offence under section 271(b) of the Penal Code rather than under section 266. Conviction altered accordingly.

(2) That the "the gross sum" in section 185 of the Criminal Procedure Code is misleading in that the section is intended to include cases where the property stolen may not be money.

Appeal dismissed.

Appellant absent, unrepresented.

Phillips, Crown Counsel, for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN).—This is a second appeal and no point of law is raised. No appeal lies. The appeal is dismissed.

We would observe that the use of the words "the gross sum" in section 185 of the Criminal Procedure Code is apt to cause some misunderstanding. The section is expressly intended to include cases where the property stolen may not be money, conceivably mail bags in this case under section 268, Penal Code, or cattle as in this case under section 271, Penal Code. So the use of the words "the gross sum" is apt to be misleading. In the present case conviction should have been under section $271(b)$ , Penal Code, and not section 266 and we formally alter the conviction accordingly.