Mtematuku s/o Mlima v. R., Crim. App. 882-D-66; 4/3/67; Duff, J.

Mtematuku s/o Mlima v. R., Crim. App. 882-D-66; 4/3/67; Duff, J.

Accused was convicted of stealing a watch, after having been charged with receiving the watch knowing or having reason to believe the same to have been feloniously obtained.

            Held: “Nowhere is there a provision where by a court may convict an accused person of stealing an article in respect of which he had been charged with receiving the same article.” Section 181(2) of the Crim. Proc. Code permits a court to convict an accused of a crime different than that with which he was charged only when (a) the  circumstances embodied in the major charge necessarily and according to the definition imputed by that charge constitute the minor offence also, and (b) the major charge as formulated given the accused notice of all the circumstances going to constitute the minor offence of which it is proposed that he no be convicted. (2) While the theft conviction could not be upheld, there was ample evidence to support a conviction of receiving stolen property knowing it to be stolen, and a conviction for this offence was substituted by the High Court.