[1940] EACA 58

# APPELLATE CRIMINAL

## Before SIR JOSEPH SHERIDAN, C. J. and BARTLEY, J.

# LEONARD ARTHUR BARTON, Appellant.

# REX. Respondent.

#### Criminal Appeal No. 70 of 1941

# Criminal Law-Theft-Recent possession-Onus of proof-Application of the rule in Rex v. Schama and Abramovitch-Sentence.

The appellant was charged before the Acting Resident Magistrate, Nakuru, with the theft of a rifle *contra* section 252 of the Penal Code.

At the close of the Crown case the appellant, after unsuccessfully submitting that there was no case to answer, pleaded not guilty to the charge and elected to be tried summarily.

After the appellant had given sworn evidence in his defence he was convicted of the offence charged, the learned magistrate finding that although there was no direct evidence of the actual taking, the possession so recent and in such circumstances and in such close proximity to the scene of the actual taking, of a rifle proved stolen, constituted a strong but rebuttable presumption that the possessor was also the thief-and that as the appellant had singularly failed to rebut that presumption, he should be presumed to be the actual taker and should be convicted of the theft as charged.

The full facts of the case appear sufficiently from the judgment of the Court of Appeal.

On conviction the appellant was sentenced to ten weeks imprisonment with hard labour without the option of a fine.

From the conviction and sentence the appellant appealed.

Held (19-4-41).—(1) That the learned magistrate had misdirected himself in law as to the exact nature of the burden of proof requisite for the appellant to discharge.

(2) That if the learned magistrate had directed himself correctly, the test would have been whether he considered the accused's story might reasonably be true-irrespective of whether in fact he believed it or not.

(3) That had the magistrate so directed himself, he would or must inevitably have come to the same conclusion.

(4) That although the conviction must stand because of (3) supra, the sentence imposed by the learned magistrate was in all the circumstances excessive, and might well be altered so as to give the accused the option of a fine.

Appeal as to conviction dismissed but as to sentence allowed and the sentence altered to a fine of Sh. 300 or six weeks imprisonment with hard labour in default.

Rex v. Schama and Abramovitch (11 C. R. App. R. 45) affirmed.

## Allan for the Appellant.

## Spurling, Crown Counsel, for the Crown.

JUDGMENT.—The facts in this case, which are proved and not disputed by the accused, are that Mr. Brimblecombe parked his car outside the Stag's Head Hotel, Nakuru, at 6.30 p.m. on the 23rd February. He left a Mauser rifle in a leather case in the car which he left locked. At about 11 p.m. that night the

accused was carrying that rifle in its case near that same hotel. The car was discovered by Mr. Brimblecombe at about 1 a.m. in a ditch evidently not far from the hotel. The car, when found, had been broken into by the glass of a door being broken and the rifle had gone. The accused took the rifle to the Military Hostel at Nakuru, where he spent the night, and at 7.30 a.m. next morning the accused openly took the rifle in its case with him by train to Njoro, where he was stationed at the School of Instruction. At 5 p.m. on the 24th February, Mr. Brimblecombe received a telephone message from a person giving the accused's name, and the accused admits he telephoned stating that he had the rifle and would return it in the morning. The accused did return the rifle to Mr. Brimblecombe at 9.30 a.m. on the 25th February.

The learned Resident Magistrate in his judgment stated that in his view "the facts shown put the burden upon the accused to rebut that very strong inference". The magistrate referred to the inference that the accused had either stolen the rifle or had received it knowing it to be stolen. In our view the learned trial magistrate should have directed himself in accordance with the decision in R. v. Schama and Abramovitch, 11 Cr. App. R. 45, which lays down that if a person is in possession of stolen property recently after the stealing it lies on him to account for its possession. There is a presumption that he either stole the property or received it knowing it to be stolen. If an explanation is given which might reasonably be true and which is consistent with innocence, even though the Court is not convinced of its truth, the accused is entitled to be acquitted.

The learned magistrate, however, proceeded to consider the explanation offered by the accused which he described as "most hazy". "meagre and unconvincing".

We are unable to agree with the finding of the learned magistrate that the evidence proved that the rifle "was unlawfully removed from the car before the smash". We have, however, carefully considered the evidence of the accused and have come to the conclusion that had the learned magistrate rightly directed himself he would or must inevitably have come to the same conclusion.

Even taking it for granted that the accused found the rifle, and the accused is not even certain that he did, his subsequent actions prove fraudulent conversion.

In view of the clean record of the accused and the circumstances of the case we, however, are of the opinion that the ends of justice would have been met by the infliction of a fine. We therefore dismiss the appeal against the conviction but alter the sentence to one of a fine of Sh. 300 or in default to six weeks imprisonment with hard labour.

The fine may be paid in three instalments of Sh. 100, the first instalment to be paid on or before the 1st May, 1941, and the other two on or before the 1st June, 1941, and the 1st July, 1941.