John s/o Elirehema v. R., Crim. App. 25-A-68, 3/5/68, Platt J.

John s/o Elirehema v. R., Crim. App. 25-A-68, 3/5/68, Platt J.

Accused was convicted of stealing from the person of another. (P.C. ss. 265, 269 (a). ) Complainant had done some work for accused, and came to accused in a bar to collect his wages At accused ‘s request, he obtained change for a Shs. 100/- note from his mother. Accused took the change but retained the Shs. 100/- note at all times and did not give either it or the wages to complainant. On appeal, the Republic argued for conviction of cheating or taking by false pretences (P.C. ss. 304, 302).

            Held: Arguably, accused insinuated that he intended to give complainant the Shs. 100/- note and to pay his wages upon receiving the change, which might be considered a “trick” or “device” within the meaning of section 304. However, “cheating” and false pretences” are offences involving a complainant’s parting with the “property” in a thing rather than the mere possession of it. [Citing Hollis v. R., (1883) 12 L.R., Q.B.D.; R. v. Williams, 6 Car. & P. 390]. Here the complainant and his mother did not intend that the property should pass permanently to accused except in exchange for Shs. 100/- note and complainant’s wages. Thus, they parted with possession only, and the offence committed was larceny by trick, dealt with in Penal Code section 265, the general theft provision. The fraudulent deception was not evidence of cheating so much as evidence of the animus furandi. Conviction for theft substitutes.