R v Benson Mbewe (Criminal Review Case 224 of 1939) [1939] ZMHCNR 7 (31 December 1939)
Section 168 Criminal Procedure Code does not permit conviction for neglect of duty when the charge was theft by servant, as the two offences are unrelated; the conviction was improper and must be quashed.
Source-derived case information.
- Citation
- [1939] ZMHCNR 7
- Parties
- Prosecution: Republic; Accused: Benson Mbewe
- Court
- High Court of Northern Rhodesia
- Jurisdiction
- Zambia
- Case Number
- Criminal Review Case 224 of 1939
- Procedural Posture
- Criminal Review / Judgment
- Outcome
- conviction quashed
- Legal Topics
- Conviction for Lesser Offence, Interpretation of Criminal Procedure Code Section 168, Theft by Servant, Neglect of Duty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Prosecution
Benson Mbewe
Accused
Procedural Posture
Criminal Review / Judgment
Legal Issues
- 1 Whether section 168 of the Criminal Procedure Code permits conviction for an offence not included in the offence charged
- 2 Whether neglect of duty under Cap. 62 is a minor offence included in theft by servant
Ratio Decidendi
Section 168 Criminal Procedure Code does not permit conviction for neglect of duty when the charge was theft by servant, as the two offences are unrelated; the conviction was improper and must be quashed.
Court Disposition
conviction quashed
Orders
- The conviction is quashed.
Full Case Text
Judgment text and source record
1 paragraphs
58 Vol. II] R. v. BENSON MBEWE. Criminal R eview Case N o. 224 of 1939. Crim inal Procedure Code section 168— conviction o f offence lesser than the offence charged. The facts appear from the judgment hereunder. As to the meaning to be attributed to the words “ minor offence ” see R. v. E. Mumbi Chilao 5 N . R . L . R . 459. R ob in son , A . C . J .: In this case the accused was charged with an offence contra section 249 Penal Code (theft by a servant). The Magis trate came to the conclusion that there was insufficient evidence o f theft but a clear case had been made out o f neglect o f duty contra section 75 (2) o f Cap. 621 2 (Employment o f Natives Ordinance). Therefore he invoked section 169 Criminal Procedure Code and convicted the accused o f the latter charge. I am afraid the true function o f section 169 Criminal Procedure Code2 has been misunderstood. A good clue to it is to be found in the marginal note which reads “ when offence proved is included in offence charged” ; Now the offence charged is theft and the definition o f theft is found in section 236 Penal Code. It is difficult to illustrate the point perhaps with theft because there must be a fraudulent taking or conversion, but take, for instance, section 220 Penal Code: “ Assault causing actual bodily I f the actual bodily harm cannot be proved, section 169 Criminal harm ” , Procedure Code can be invoked to substantiate a conviction for simple assault, section 219 Penal Code. The greater includes the less. But in this case, section 75 (1) o f Cap. 62 has no relation at all to the I hope I crime o f theft and therefore section 169 has no application. have made m yself clear. The conviction must be quashed. The correct way w ould have been to have found the accused not guilty on the charge o f theft and then to have charged him again quite distinctly on a charge contra Cap. 621; he had never been in peril o f that latter charge as he w ould have been in a case where section 169 could properly have been invoked. 1 Now Cap. 171.—Editor. 2 Now section 168 Criminal Procedure Code—Editor,