Wakilii

Barton v Rex (Criminal Appeal No. 70 of 1941)

East African Court of Appeal · [1941] EACA 58 · 1940 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction by Acting Resident Magistrate, Nakuru
Decision
Conviction upheld; sentence reduced to fine with instalment payment option

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Where an accused is found in recent possession of stolen property, the burden lies on him to account for possession, but if he gives an explanation which might reasonably be true and is consistent with innocence, he is entitled to acquittal even if the court is not convinced of its truth. The magistrate misdirected himself on the standard of proof required but would inevitably have reached the same conclusion on the evidence. Conviction upheld but sentence reduced to a fine with option of imprisonment.

Outcome

Conviction upheld; sentence reduced to fine with instalment payment option

Facts

On 23 February, Mr. Brimblecombe parked his locked car outside the Stag's Head Hotel, Nakuru at 6.30 p.m., leaving a Mauser rifle in a leather case inside. At about 11 p.m. that night, the appellant was seen carrying that rifle in its case near the same hotel. At about 1 a.m., Mr. Brimblecombe discovered his car in a ditch with a door glass broken and the rifle missing. The appellant took the rifle to the Military Hostel where he spent the night, then openly carried it by train to Njoro at 7.30 a.m. the next morning. On 24 February at 5 p.m., the appellant telephoned Mr. Brimblecombe stating he had the rifle and would return it in the morning. The appellant returned the rifle on 25 February at 9.30 a.m. The appellant was charged with theft of the rifle and convicted by the Acting Resident Magistrate, Nakuru, who sentenced him to ten weeks imprisonment with hard labour without option of a fine.

Issues

  1. Whether the learned magistrate correctly directed himself as to the burden of proof where the accused was found in recent possession of stolen property.
  2. Whether the accused's explanation for possession of the stolen rifle was sufficient to rebut the presumption of theft.
  3. Whether the sentence of ten weeks imprisonment with hard labour without option of a fine was excessive in the circumstances.

Orders

  • Appeal against conviction dismissed.
  • Appeal against sentence allowed.
  • Sentence altered to a fine of Sh. 300 or in default six weeks imprisonment with hard labour.
  • Fine may be paid in three instalments of Sh. 100 on or before 1st May 1941, 1st June 1941, and 1st July 1941.

Rules and key headnotes

Evidence — Recent Possession of Stolen Property — Burden of Proof
Where a person is found in possession of stolen property recently after the stealing, it lies on him to account for its possession and there is a presumption that he either stole the property or received it knowing it to be stolen.
Evidence — Recent Possession — Standard for Rebutting Presumption
If an accused gives an explanation for possession of recently stolen property 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.
Criminal Law — Misdirection — Effect on Conviction
Where a trial magistrate misdirects himself on the burden of proof but the appellate court is satisfied that had he directed himself correctly he would or must inevitably have come to the same conclusion, the conviction will be upheld.
Criminal Law — Sentencing — Excessive Sentence
In determining whether a sentence is excessive, the appellate court will consider the clean record of the accused and all circumstances of the case, and may substitute a fine for a custodial sentence where the ends of justice would be met by such a course.

Legislation cited (1)

  • Penal Code s.252

Cases cited (1)

  • Rex v Schama and Abramovitch (11 Cr App R 45)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Barton v Rex (Criminal Appeal No. 70 of 1941) [1940] EACA 58 (1 January 1940)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.