Juma s/o Abdallah v. R., Crim. App. 662-M-67, 4/10/67 Cross J.

Juma s/o Abdallah v. R., Crim. App. 662-M-67, 4/10/67 Cross J.

Accused  were each convicted on one count of being found armed with housebreaking implements [P.C. s. 298(d)] and on a second count, which was expressly stated to be an alternative count, of being rogues and vagabonds[P.C. s. 177(4)]. In reply to the first count the first accused stated, “Yes, I was found in possession of these housebreaking instruments by day.” The second accused ‘s reply was almost identical. In reply to the second count, each said that he had no job in town but intended to return to the country to word. The were treated as pleas of guilty.

Held: (1) An element of the offence of possession of housebreaking implements by day is the intent to commit a felony. The particulars of the charge do not allege, nor did the replies admit, such an intent. Therefore, the replies were not guilty pleas. (2) The gravamen of a charge of being a rogue and vagahond is the presence of the accused for an illegal or disorderly purpose. Nothing in the replies of the accused or in the circumstances suggests such a purpose. (3) When an accused person is charged on alternative counts, any conviction recorded should be on one count only and no verdict should be recorded on the other count.