19741028 TZHC Arusha

IN THE HIGH COURT OF TANZANIA AT ARUSHA *

APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO, 60 OF 1974 ORIGINAL CRIMINAL CASE NO, 1089 OF 1973 OF. THE DISTRICT COURT OF MOSHI DISTRICT AT MOSHI Before B.D. thipeta Esq., ----------------------Senior Resident Magistrate JOSEPH HAMISI ---------------------------------------APPELLANT (Original Accused) versus The Republic. -----------------------------------RESPONDENT (Original Prosecutor)

J U D G E M E N T Jonathan, J. The appellant, Joseph Hamisi was convicted of hbrglary and stealing, c/ss. 294 (1) and 265 of the Penal Code0 It seems that on the material night the complainant P.W 1. locked his ho.use and left to see a friend0 He returned between mid-night and 1,00 a.m to find the door open and the appellant nearby carrying.the complainant's suit case containing clothes which had been in the house. The appellant in reply would only say that he had gone there because he was drunk. This account is supported by P.W 3 who occupied a room in the same house and who answered the alarm of the complainant. P.W 3. the /went/police officer who/upon being telephoned by the complainant testified to the there/SaI'fle effect. -S The appellant in his unsworn statement said he was stopped and beaten up on suspicion. He however denied the off ences, adding that he was drunk. The learned senior resix megistr.te in his judgment was impressed that P.W 1 and P,W 3 wec both truthful witnesses, He accordingly found as a fact that P .W 1 had found - the door-broken and the apellnt having possession of his clothes and coming out of the house. To repeat the tiord of the learned magistrate-thern appellant-was caught "red-handed" and I can find no fault with the rejection of the defence and the conclusion that the appellant committed the offences. It seems the appeal was admitted to

hearing mainly, if not solely, because it was not clear from the evidence if the offences werecommittedatnight. I now trauspires, however, that havingregard to the .ircumstances asa whole , including the appe1lans own statement 1wh1chhe gave the time of his coming out of the bar as .11.30 p.m, the Qcc ene-.thhe bt:i1tt. • The appellant in his petition says hewas.irunk, so he could not havepeietrated the offences. The arresting police officer (P.W 2) said the appellant appeared a little drunk, but there was otherwise nothing in the eviderce, again1 including the appellant's statemerit.in defence, to suggest that he was too drunk to form an intent to burgle the house and I may note that this was really not the defence Put up at the trial; the appellant was denying the act Of breking itself. There is otherwise no.merit in the appeal and it is dismissed in its entirety, the sentence being the minimum. - P.M. JONATHAN . J U D G E . '.. .5 4t Ijt fQ*4. /Kimathl