R v Kaswaka Jack (Criminal Review Case 259 of 1939) [1939] ZMHCNR 13 (31 December 1939)

70 V ol. II] R . v. K A SW A K A JA C K . Criminal R eview Case N o. 259 o r 1939. Penal Code section 271 (2)— theft and breaking out o f dwelling-house—recent possession of stolen property— alternative conviction o f receiving. Where the only evidence is that the accused was found in posses­ sion o f a portion o f the stolen property this is n ot necessarily sufficient to support a conviction under section 271 o f the Penal Code. Section 171 o f the Criminal Procedure Code has been repealed and replaced by section 174 (1) (a). But see R. v. Loughlin 35 Cr. A pp. R ep. 69, which is authority for the proposition that where it can be proved that premises have been broken into and property stolen therefrom , and very soon after the breaking the accused has been found in possession o f that pro­ perty, it is open to the Court to find the accused guilty o f breaking and entering and, if he is, it is inconsistent to find him guilty of receiving because a man cannot receive from himself. R obin son , A . C . J .: I do n ot think the evidence in this case is sufficient to support a conviction contra section 271 (2) Penal Code. There is no evidence at all to connect the personal presence o f the prisoner inside the house. Mr. Jones’ house at Broken H ill was broken into on Sunday, 24th I think tw o sheets, tw o blankets September, between 7.30 and 8.30 p.m . and a quilt were stolen. The evidence is n ot very clear. On Tuesday, 26th September, the prisoner (I think) was arrested and a blanket was found in his hut on a nearby farm . The blanket was identified as one o f the stolen ones. The rest o f the property has not been found. On that evidence the Court is asked to say that it is satisfied beyond reasonable doubt that it was the prisoner and nobody else who broke out o f the house and stole all the missing articles on the previous Sunday. It is too big an assumption. The evidence in m y opinion is sufficient to support a conviction for receiving stolen property, section 286 (1) Penal Code, i.e., one blanket, on the theory o f recent possession. It is quite possible, for instance, that the house b o y gave the prisoner the stolen property. The “ recent possession ” coupled with the rest of the evidence would also be good grounds for saying th at the prisoner had stolen the blanket, but I do not think a Court can g o further than that and find the prisoner also guilty o f the very serious crim e o f burglary and o f having stolen other articles, not produced, as w ell. [Vol. II Section 171 Criminal Procedure Code permits me to alter the con­ viction. I, therefore, quash the conviction contra, section 271 (2) Penal Code and section 243 Penal Code and substitute therefor a conviction contra section 286 (1) Penal Code. Under the new circumstances, I reduce the sentence to one o f nine months I. H . L . and I approve the recommendation for deportation within the Territory for a period o f three years. *