Emanuel and Another v. R. Crim. App. 171-A-70; 12/3/71; Kwikima Ag. J.

 

 Emanuel and Another v. R. Crim. App. 171-A-70; 12/3/71; Kwikima Ag. J.

The appellant and his co-accused were charged, inter alia, with obtaining money by false pretences c/s 302 of the Penal Code. The evidence before the magistrate was to the effect that the appellant was given 200/- by the prosecution witness, a Game Warden, “so that he could have some people to collect the property from the bush”. The appellants had previously indicated that they were in possession of game trophies. The Game Warden gave them the money in order to obtain evidence to charge them with the unlawful possession of government trophies. The evidence further disclosed that when the appellant turned up with the sacks they contained banana leaves and pieces of wood fashioned in the shape of rhino horns. After calling their last witness, the prosecution sought and obtained permission to with draw the charge of obtaining money by false pretences and substituted another charge of cheating c/s 304 of the Penal Code. The provisions of Section 209 of the Criminal Procedure Code were duly complied with. The appellants pleaded not guilty to the new charge and elected not to recall any witnesses whereupon the prosecution closed its case. The appellants were then convicted not of the new charge of cheating but of obtaining money by false pretences.

            Held: (1) “The accuseds were improperly convicted of obtaining money by false pretences, a charge which they were not facing at the time of the judgment. There was no evidence to support that charge anyway.” (2) “The appellant cannot be said to have ‘perpetrated …….. a trick or device’ to obtain Shs. 200/- from the complainant. They simply pretended to some future act of carrying the alleged trophies from the bush to the roadside.” (3) “The prosecution did not help matters by failing to specify the pretence in the first place; so that the accuseds were embarrassed in their defence.” (4) Conviction quashed.