Mazengo s/o Magala v. R., Crim. App. 116-D-69, 25/2/69, Biron J.

 Mazengo s/o Magala v. R., Crim. App. 116-D-69, 25/2/69, Biron J.

The appellant, who was charged on two counts, of cattle theft and of criminal trespass, was acquitted on the latter count, and on the first count he was found guilty of attempted cattle theft and sentenced to imprisonment for three years, and to the statutory twenty four strokes corporal punishment. Evidence was given by two herdsmen employed by the complainant who slept near his cattle boma, that at about three o’clock in the morning they were awakened by the sound of cattle moving and they found four head of cattle outside the boma, which had been broken open. When about to return the cattle to the boma, they caught sight of the appellant, who when he realized that he had been seen, attempted to escape by breaking through what is apparently a hedge surrounding the compound, but he was apprehended.

Held: (1) “The magistrate directed himself as follows; “The question now is to decide whether the act of driving out of the boma four cows and caught before moving them away from the victim’s courtyard is ‘taking’ in the real sense of the word ‘taking’ in my opinion I think the act of carrying away had not et been completed because the cows were still in the courtyard of the victim and so within the victim’s jurisdiction. This is like a man who puts his hand into somebody’s pocket, grabs some money but caught before removing the money from the pocket. This would be an attempt to steal ……” With respect, the

Magistrate has misdirected himself on what constitutes taking. There was more than sufficient asportation in this instant case to constitute a taking within the meaning of the definition of theft. As the magistrate has quoted from Archbold, though in a different context, in respect of a possible misnomer of the appellant in the charge sheet, he is advised to consult Archbold (35^th Edition) on this aspect of asportation, set out at paragraph 1512. Incidentally, as the magistrate will note, the very example given by him in the passage quoted, that is, picking a pocket but being prevented from entirely removing the purse therefrom, was held to constitute theft.”

            (2) “With regard to the second count the magistrate directed himself: “2^nd Count.  The facts in the first conviction are more or less the same as those in this count. Therefore a conviction on this count will be more or less a double conviction (duplicity) ……… although substantively the second count was really unnecessary, as the offence was part and parcel of the cattle theft charged, nonetheless, on the facts, a conviction could have been found on the charge as laid, as it does constitute a separate and distinct offence from stealing, though naturally any sentence imposed on such conviction would be ordered to run concurrently with the sentence imposed on the substantive charge.”

            (3) “It is further pointed out for the benefit of the magistrate that it is contrary to practice to acquit on a substantive charge and then, after signing and dating the judgment, go on to deliver “An alternative verdict” and find the accused guilty of attempting to commit the offence he was charged with. In fact, such a procedure is to be deplored, as it lays itself open to the danger of a submission that, once an accused has been acquitted, he cannot thereafter be convicted on the same facts on the principle of autrefois acquit.”

            (4) Appeal dismissed.