Rex v Watkins (Criminal Appeal No. 98 of 1945) [1945] EACA 25 (1 January 1945)

# COURT OF APPEAL FOR EASTERN AFRICA

### Before Sir Joseph Sheridan, C. J. (Kenya), Sir Norman Whitley, C. J. (Uganda), and **SIR** JOHN GRAY, C. J. (Zanzibar)

## REX, Respondent (Original Prosecutor)

## CYRIL J. WATKINS, Appellant (Original Accused)

## Criminal Appeal No. 98 of 1945

(Appeal from decision of H. M. Supreme Court of Kenya)

Criminal Law—Stealing—Section 272, Kenya Penal Code—Ambiguous verdict— Re-trial.

The appellant was charged with the theft of a heifer. The jury's finding was "Guilty; we think he is guilty more by criminal neglect than by criminal intent". A conviction was entered. The appellant appealed.

Held $(20-8-45)$ .—(1) The verdict of the jury cannot and should not be construed as an unequivocal finding of guilty of theft, criminal negligence not constituting theft.

(2) The power vested in the Court to order a re-trial should only be exercised in a proper case of which this is not one.

Appeal allowed.

Shaw for the Appellant.

### Todd, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—We have heard a full argument from counsel and have come to the conclusion that the verdict of the jury cannot be construed as a finding of guilty of theft. The jury's finding was "Guilty; we think he is guilty more by criminal neglect than by criminal intent". A verdict so expressed cannot and should not be construed as an unequivocal finding of fraudulently and without claim of right taking the heifer, the subject of the information, or fraudulently converting the heifer. It is a case in which the jury should have been asked exactly what they meant, but unfortunately that was not done. A conviction based on a verdict so expressed cannot stand. This Court is vested with the power of ordering a re-trial—a power only to be exercised, of course, in a proper case. This, in our opinion, is not such a case. The jury's verdict, as we interpret it, is that they were not satisfied that an intent to steal was proved, but that the accused had shown himself to be criminally negligent. We need only say that the existence of criminal negligence, however reprehensible it may be, does not constitute theft. The appeal is allowed and the fine, if paid, is directed to be refunded.