Selemani v. R. Crim. App. 188-M-71; 10/11/71; El-Kindy, J.

 

Selemani v. R. Crim. App. 188-M-71; 10/11/71; El-Kindy, J.

The appellant was convicted by the trial court of theft from the person of another c/ss 296 (c) and 265 of the Penal Code. The evidence established that the appellant arrested the complainant and on their way to the police station in a police vehicle, the complainant alleged that the appellant started searching him while the vehicle was in motion and took

From his pocket Shs. 3,000/-. On arrival at the police station, the appellant remitted Shs. 2,000/- only to a police officer on duty. The complainant protested that some money had not been remitted. As a result of these protests, the appellant was taken to a room to be questioned about the money. While in that room the appellant was seen handing Shs. 900/= to the driver of the vehicle who was in the room. The appellate court accepted the finding that the Shs. 900/= was part of the money of the complainant and the issue was to establish the stage at which the appellant formed the intent to steal.

            Held: (1) “While it is possible that one could argue that when the appellant was taking the money out of the pocket of the complainant he was performing his duty of searching the complainant, the same cannot be said when he was handing over the money to police constable Theonesti. He had Shs. 3,000/- in his possession and therefore when he withheld the Shs. 1,000/= at the time of hanging over Shs. 2,000/= to police constable Theonesti, he manifested an intent to necessary intent to steal, and not when he took out the money from the pocket of the complainant. In the circumstances, I theft from the person of another as charged. It was beyond reasonable doubt that he was guilty of simple theft. For this reason, therefore, the conviction for theft from person of another contrary to sections 269(c) and 265 of the Penal Code Cap. 16 are quashed. And in accordance with section 181 of the Criminal Procedure Code, Cap. 20, I substitute therefore a conviction for theft contrary to section 265 of the Penal Code, Cap. 16.”