Elias s/o Mashamba v. R. Crim. App. No. 747-M-70; 16/9/71; El-Kindy, J.

Elias s/o Mashamba v. R. Crim. App. No. 747-M-70; 16/9/71; El-Kindy, J.

The appellant was charged with obtaining money by false pretences c/s 302 of the Penal Code. Three witnesses gave evidence in support of the charge. They gave evidence that the accused told them that if they gave him money, he would take it to a police officer he knew and obtain the release of their relative who had been detained, apparently as a habitual criminal. They gave him various payments amounting to Shs. 2, 050/=. Nothing was written down relating to the transaction. The detainee was no released and the three persons informed the police. Two of them made clear statements that they knew the money was a bribe and what they were doing illegal. It was argued for the appellant that the witnesses were accomplices and as such their evidence required corroboration, and on the facts and the evidence the offence disclosed was not obtaining by false pretences but corruption to which the three witnesses were principals.

            Held: (1) “It seems to me that the learned magistrate was duty bound to consider whether the three main witnesses were either accomplices or victims or persons with their own interests to serve. The trial court did nothing of this sort. It was not enough, in the circumstances of this case, to say that these people were reliable witnesses. It was necessary to decide what sort of legal category these people could be placed in. in coming to this decision, he had to consider the evidence. Particeps Criminis, as it was held in the case of Daview v. Director of Public Prosecutions (1954) 1 All E. R. p. 507 at p. 513, have been held to be accomplices. With respect I accept that distinction. I think it was the duty of he trial to consider whether PW. 1, 2 and 3 fell into this category. With the evidence of P. w. 2 and P. W. 3, it is clear that they were actively participating in a crime. They were consciously and deliberately handing over money with intent that it should be used as bribe to a police officer who was believed to have the powers of releasing their relative Malyatabu. Even if the appellant had originally suggested and continued to encourage them in their design, this did not make them any less particeps criminals. I would respectfully uphold he learned defence counsel’s submission that that the three main witnesses were accomplices to all intents and purposes.” (2) “The learned State Attorney was right in arguing that a conviction is still alid in law under provisions of section 142 of the Evidence Act, 1967, but before the court could do so it must warn itself of the danger of convicting on an uncorroborated evidence of an accomplice (see Canisio s/o Walwa v. R. (1956) 23 E. A. C. A. p. 453 at 458). In this case, there was no such warning by the learned magistrate. In the circumstances, the trial court had evidence of accomplices and as it can be seen there was no material corroboration to their evidence and therefore it was unsafe to act on such evidence as he did.” (3) Conviction quashed and sentence set aside.