[1953] EACA 20

## APPELLATE CRIMINAL

### Before HEARNE, C. J. and BOURKE, J.

#### NJERU s/o RUNYENJE (*Appellant*)

# REGINA, (Respondent) Criminal Appeal No. 805 of 1952

Criminal Law—Penal Code, section 77—Unlawful assembly—Whether common purpose proved—Section 394—Conspiracy to commit felony—Whether intent proved—Section 303 (b)—Found armed at night with intent to break and enter a building—Whether general or particular intent necessary—Section 28 (1) Larcenv Act. 1916. compared—Section 303 (c)—Found in possession by night of an instrument of housebreaking—Section 28 (2), Larceny Act, 1916, compared—Whether proof of particular intent necessary—Common purpose of housebreaking-Whether possession of one, possession of all-Common possession—Section 334 (1)—Malicious injury to property—Driver wilfully backing lorry into car—Whether passengers had common purpose.

The appellant was one of 16 Africans found in a lorry stopped on the night of 30th September, 1952, by a District Officer in Embu District. The lorry was the property of an Asian, whose driver was using the lorry contrary to his employer's orders. The passengers were found lying down behind the side panels; the number plate was concealed with whitewash and knives and iron bars were found next day at the spot where the lorry was stopped. A number of offensive acts by the occupants of the lorry were alleged to have been committed. The facts sufficiently appear from the judgment. The appellant was one of nine occupants of the lorry who were charged and convicted of five offences purporting to be laid under sections 76, 394, 303 (b), 303 (c) and 334 (7) (g) of the Penal Code.

The appellant appealed.

Held (9-2-53).—(1) The appellant was not properly convicted of taking part in an unlawful assembly contra section 76, Penal Code (the proper section was section 77). No common purpose was set out in the particulars. Even if that common purpose was meant to be<br>burglary or housebreaking the facts did not amount to proof of any such common<br>purpose. Conviction set aside.

(2) The appellant was not properly convicted of conspiracy to commit burglary or<br>housebreaking *contra* section 394, Penal Code. No felony was set out in the particulars.<br>Even if that felony were meant to be burglary or ho proof of such a conspiracy. Conviction set aside.

(3) Before there can be a conviction under section 303 (b) of the Penal Code in a charge of being found armed by night with intent to break into a building, it is necessary to prove that the accused had the intent of breaking into or of entering some particular building, and proof of a general intent to break into houses is insufficient. As it was not proved that the accused had an intention to break into any particular house the conviction was set aside.

(4) Where it is proved that an accused person is found in possession by night without lawful excuse of any implement of housebreaking contra section 303 (c), Penal Code, the offence is complete without proof of any immediate purpose of committing felony. The offence consists merely of possession without lawful excuse.

(5) Where several persons are found together at night for the common purpose of housebreaking and only one is in possession of the housebreaking implements, all may be<br>found guilty of an offence under section 303 (c), Penal Code, for the possession of one, in such case, is the possession of all.

(6) Although the appellant was not proved to have been in possession of one of the implements of housebreaking there was ample evidence of the existence of a common intention of housebreaking and the appellant was rightly convicted of an offence under section 303 (c), Penal Code.

ν

(7) The charge laid under section 334 (7) (g) should have been laid under section 334 (1) of the Penal Code. Whatever the mission on which the occupants of the lorry were bent, it could not be held, on the evidence, that it included the running down of cars. The decision to back the lorry into the car was taken on the spur of the moment and it could not be held, in the absence of proof of incitement, that the other passengers had so identified themselves with the action of the driver that they could also be convicted. Conviction set aside.

Appeals on counts 1, 2, 3 and 5 allowed. Appeal on count 4 dismissed.

Cases referred to: R. v. Jarrald and Ost, (1861-4) 9 Cox Cr. C. 307; R. v. Bailey, (1852-5) 6 Cox Cr. C. 241; R. v. Thompson, (1867-71) 11 Cox Cr. C. 362.

Also referred to: Archbold, 32 ed. page 663.

#### $R. B.$ Bhandari for the appellant.

Le Gallais, Crown Counsel, for the Crown.

JUDGMENT.—The appellant was one of nine persons who were convicted of various offences to which we shall later refer. He was accused No. 8. To understand the various charges it is necessary to refer to the evidence in some detail. On the night of the 30th September, 1952, a lorry was stopped between Memburi and Ruyenjes in Embu District by a district officer stationed at Embu, Besides the driver (accused 3) the turnboy (accused 5) and the latter's assistant (accused 4), there were 13 other persons in the lorry. The passengers were lying down below the level of the side panels to give the impression, so the district officer thought, that the lorry was empty. The lorry was taken into Embu and the 16 persons were placed on remand and handed over to the prison authorities. Of these only nine were charged. It does not appear from the record why proceedings were not taken against the other seven. The lorry was a 5-ton ex-Army lorry, pale yellow in colour. It was the property of one Balwant Singh who had instructed accused 3 to take it at 8 a.m. on 30th September on the road to Naivasha in order to collect charcoal. He described it as being cream in colour. When the lorry was taken to Embu by the district officer a panga scabbard and a stick were found in it. The district officer thought a knife (exhibit 2) had also been found, but this does not appear to be correct. According to the fourth witness for the prosecution (Songoru) who was with the district officer at the time he stopped the lorry and the sixth witness for the prosecution (Sgt. Muruateau), the knife (exhibit 2), a second knife (exhibit 9), a third knife (exhibit 10), two iron bars (exhibits 7 and 8) and another iron bar (exhibit 6) were found the following day near a point on the road to which the fourth witness took the Sergeant. This point of the road was where the former said the district officer had stopped the lorry which he described as "very big" and the number of which had been "covered over with whitewash". Prior to the action taken by the district officer to which we have referred, a lorry "yellow in colour" was seen by M. M. Patel about 7.30 p.m. at Ruyenjes at the Meru end of the trading centre. He identified this lorry as the one he later saw "outside the office at Embu". It left in the direction of Embu. Arriving at his shop, Patel received reports from his wife and servant (Karia) and he sent his car in search of the lorry which he had seen. One of the persons who went in Patel's car was Chief Mugishu. He described how a lorry which they overtook backed into the car and caused extensive damage to it. He heard the words "Rudisha nyuma" (return it backwards or reverse) and he saw people getting off the lorry which he said was green in colour. "He noticed the lorry had no number—in the place of the number was whitewash over". The eighth witness for the prosecution (Federe) described what had occurred as the Chief had done. He said the lorry was yellow and identified it as the lorry he saw next day "at the office". The eleventh witness for the prosecution (Karige) saw a stationary lorry at 6 p.m. about two miles from Kevoti. It was a large lorry, he said, containing 18 people and it had no number. He recognized accused 1, 3, 4, 8 and 9 in the lorry which he described as very big and yellow in colour.

The magistrate found that the lorry in which the nine accused, including the appellant, were arrested, was the one which appeared at Ruyenjes and the one which crashed into Patel's car. There is ample evidence that the lorry taken into Embu by the district officer and in which the appellant was a passenger, was the lorry which, as the magistrate held, was purposely driven backwards into Patel's car. Now, by reason of this, all the accused, including the appellant, were found guilty of maliciously "damaging property being a machine" *contra* section 334 (7) (g) of the Penal Code. The charge should have been framed under section 334 (1), Penal Code. But apart from this, whatever may have been the mission on which the occupants of the lorry were bent, it cannot be held on the evidence that it included the running down of cars. It is clear that the decision to back into Patel's car was taken on the spur of the moment. The driver of the lorry and the person who incited him to back it into the car may properly have been convicted under section 334 (1), Penal Code, but it could hardly have been held on the evidence that all the other passengers had so identified themselves with the action of the driver that they could also be convicted. The conviction of the appellant under section 334 $(7)$ $(g)$ must clearly be set aside.

The identification of the lorry in which the 16 persons, including the driver, were travelling in the lorry that was seen at Ruyenjes rests upon the evidence of M. M. Patel alone. He did not notice that the number of the lorry seen by him was "whitewashed out". But, even assuming it was the same lorry, can it be said that the accused, including the appellant, was properly convicted of taking part in an unlawful assembly (section 76, Penal Code—the proper section was section 77) and conspiracy to commit burglary or house breaking, (section 394, Penal Code). It is to be noted that while count 1 refers to a common purpose, no common purpose was in fact set out. No doubt the "common purpose" was meant to be burglary or housebreaking of M. M. Patel's house and that the conspiracy to commit burglary or housebreaking was meant to be conspiracy to commit burglary or housebreaking of M. M. Patel's house. The evidence on which the accused was found guilty of these offences is the evidence of the wife of M. M. Patel and his servant (Karia). Karia said that seven men approached him, four remained with him ("they held knives in a threatening manner") and three went forward to Patel's shop. They said they wanted cigarettes. Mrs. Patel said that she saw one man who said he wanted cigarettes and she told him to go "to the front". Thereafter she did not see him and nothing else happened. Apparently they left when they were unable to obtain cigarettes. Merely on the word of Karia that four persons held knives in a threatening manner, it is difficult to see how all the persons in the lorry, even assuming the seven unidentified persons came from the lorry (and of this there is no real evidence), could have been convicted of the offences mentioned above. The convictions of the appellant of those offences must be set aside.

There remain the convictions of the appellant under section 303 $(b)$ , Penal Code and section 303 (c), Penal Code. The former corresponds with section 28 $(1)$ of the Larceny Act, 1916. In order to convict under this sub-section "it is necessary that the prisoner should be proved to have the intent of breaking into or entering some particular building and proof of a general intent to break into houses will be insufficient", Reg. v. Jarrald 9 Cox, Cr. C. 307. (Archbold, 32nd ed., page 663). Reg. v. Jarrald was a prosecution under the Larceny Act, 24 and 25 Vict. c. 96, s. 58, which is almost in the same terms as section 28 (1) of the Larceny Act, 1916, and it was held by Cockburn, C. J., that: "There must be an intention to break into some particular house". Under section 303 (c), Penal Code, however, which corresponds with section 28 (2) of the Larceny Act, 1916, the offence merely consists in possession without lawful excuse. "Unlawful possession" as it was successfully argued in *Reg. v. Bailey*, 6 Cox Cr. C. 241, "of implements of housebreaking is sufficiently dangerous to society although it may be unaccompanied with any immediate purpose purpose of committing a felony". Reg. v. Bailey was a prosecution under 14 and 15 Vict. c. 19, s. 1 (repealed) which is substantially the same as section 28 (2) of the Larceny Act, 1916. The distinction between Reg. v. Jarrald and Reg. v. Bailey is apparent from the note in Roscoe's *Criminal Evidence*, 17th ed., page 438, "If a man is armed with any other weapon than one for housebreaking, there must be some other proof of an intent to break house (and perhaps some particular house). Jarrald (1863), where the weapon was a loaded gun". But where the weapon is an instrument of housebreaking the rule of *Reg. v. Bailey* (where the Jury found no evidence to commit any felony) applies.

It follows from the above and in particular from what was said by Cockburn, C. J. in *Reg. v. Jarrald* that as there was no evidence of an intention to break into M. M. Patel's house or of any particular house other than that of M. M. Patel, the conviction of the appellant under section 303 (b) must be set aside. On the other hand, it follows from *Reg. v. Bailey* that those occupants of the lorry who were in possession of the iron bars which the magistrate properly found (and it was not argued that he was wrong in so finding) were housebreaking instruments, could have been convicted under section 303 (c). Penal Code.

One final point remains. The appellant was not proved to have been in possession of one of the iron bars which were, no doubt, as the magistrate found, in the possession of one or more of the occupants of the lorry of whom the appellant was one. Could he be convicted? The answer is to be found in *Reg. v. Thompson*. 11 Cox Cr. C. 362, in which it was held that "where several persons were found together at night for the common purpose of housebreaking, and only one is in possession of the housebreaking implements, all may be found guilty of the misdemeanour of being found at night in possession of implements of housebreaking without lawful excuse (24 and 25 Vict. c. 96, s. 28) for the possession of one in such case was the possession of all". All the occupants of the lorry, including the appellant, could therefore have been convicted under section 303 (c). Penal Code, assuming it was established that, even if they had not the common purpose of breaking into a particular house, they had the common purpose of housebreaking. If the law were otherwise, the provisions of section 303 (c), Penal Code would in many cases be rendered nugatory. There was ample evidence on which the magistrate could properly have found the existence of a common purpose of housebreaking. The use of the lorry at night with the numbers "whitewashed out", the conduct of the occupants in lying down to evade detection, etc., clearly prove that they had a nefarious common purpose, and the possession of housebreaking implements clearly shows what that purpose was. For these reasons the conviction of the appellant under section 303 (c), Penal Code and the sentence passed thereunder are upheld. His conviction and sentence under the other counts are set aside. He will go to prison for two years with hard labour under count 4. We make no order regarding his co-accused. Their cases will be dealt with in the usual way when they reach the Supreme Court for the purpose of confirmation. We would say in conclusion that no attempt was made to cite the law to us by the appellant's advocate.

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