Rex v Sunderji (Criminal Appeal No. 96/1935.) [1935] EACA 130 (1 January 1935)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR JOSEPH SHERIDAN, C. J. (Kenya); ABRAHAMS, C. J. (Tanganyika); and FRETZ, Ag. C. J. (Zanzibar).

## REX. Respondent (Original Prosecutor)

## NANJI SUNDERJI, Appellant (Original Accused). Criminal Appeal No. 96/1935.

Criminal Law-Receiving stolen property-Possession by thief originally lawful—Subsequent conversion by thief.

Held (28-10-35).-That, where property is entrusted to a person and he converts it to his own use and disposes of it, whether or not the intention to do so be conceived at or after the receipt of the property, as soon as there is an overt act showing a departure from the instructions in regard to it, the offence of theft is complete and the foundation for a case of receiving with guilty knowledge laid.

The facts appear sufficiently from the judgment.

Master for the appellant.

Furness-Smith (Solicitor-General, Tanganyika) for $the$ Crown.

JUDGMENT.—The material facts in this appeal are set out in the Memorandum of Appeal, they are (1) That the second and third witnesses were given a bale of paper by the first witness to convey to the station; (2) That the second and third witnesses on the way to the station decided to sell the bale to the appellant (Accused No .1); (3) That the second and third witnesses sold the bale to the appellant (Accused No. 1) at a low price. Put briefly the point argued by counsel for the appellant is that the bale had not been stolen prior to its receipt by the appellant and that consequently a case for receiving stolen goods cannot be sustained. There is no issue as to guilty knowledge. If the goods were stolen prior to their receipt by the appellant it is not disputed that the receiving was dishonest. In our opinion the point for determination is not left in doubt. Immediately there was an overt act showing that the second and third witnesses had departed from their instructions and decided to sell the bale entrusted to them for a particular purpose, it must be deemed that there was a conversion amounting to theft as in the case of $R$ . v. John Stock (1 Mood. 86) in which it was held "It is larceny for a person hired for the special purpose of driving sheep to a fair to convert them to his own use, he having the intention so to do at the time of receiving them from the owner". The case of $R$ . $v$ . Jackson

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$(2 \text{ Mood } 32)$ decided that "A person hired to drive cattle to a particular place who sells the same and absconds with the money is guilty of stealing, though the intention to sell be not conceived till after taking possession of the cattle". So it would appear, and this is our opinion, that whether or not the intention to sell be conceived at or after the receipt of the property, as soon as there is an overt act showing a departure from the instructions in regard to the property which results in a wrongful gain to the persons entrusted with the property and a wrongful loss to the owner of the property, the offence of theft is completed and so the foundation for a case of receiving with guilty knowledge laid. Because the overt act manifesting the theft in the cases of Stock and Jackson (supra) was the sale of the cattle by no means concludes that a sale is an essential to the larceny. The sale in those cases was but the proof "cessary" to establish the larceny. It is in accordance with law and common sense that there may be, as in the present ca..., an overt act prior to a sale establishing a larceny.

This appeal has been fought on the decision in $R$ . $v$ . Miscul and others (19 Cr. App. R. 109) but a perusal of the decision in that case makes it clear that the decision turned on the question of the meaning to be attributed to the word "obtained" in the Larceny Act. 1916. Errington, one of the prisoners, having lawfully obtained the goods it was held could not subsequently have been held to have obtained them unlawfully because of a change of intention on his part. Both the facts and the charge in the present case are different from those in Miscll's case which cannot consequently be considered as an authority. The case in our opinion is clear and the appeal is dismissed.