Wakilii

Rex v Biazzos (Criminal Appeal No. 235 of 1946)

East African Court of Appeal · [1946] EACA 53 · 1946 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction by H.M. Supreme Court of Kenya
Decision
Conviction upheld; appellant to serve three years' imprisonment with hard labour

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

On a charge of theft by agent contrary to s.277(b) of the Penal Code, an accused may be convicted of the minor offence of theft under s.269 by virtue of s.179 of the Criminal Procedure Code, as theft under s.269 is a minor offence compared to theft by agent. Although the jury's reasoning in arriving at the specific sum was not disclosed, the evidence reasonably justified the verdict where the accused's claim of right was not bona fide. The sentence, though severe, was not so excessive as to justify interference given the accused's previous convictions.

Outcome

Conviction upheld; appellant to serve three years' imprisonment with hard labour

Facts

The appellant and Mrs. McNaughton were partners in the Azania Hotel business, with Mrs. McNaughton as a sleeping partner and the appellant as the sole managing partner. The appellant used partnership funds totalling Sh. 15,226/61 for his own purposes. He was charged with theft by agent contrary to s.277(b) of the Penal Code. The appellant's defence was a bona fide claim of right based on a ledger and balance sheet showing the partnership owed him Sh. 12,231/41. This credit arose from an entry of Sh. 15,000 for a Buick car allegedly sold to the partnership. However, the car was subject to a chattel mortgage and had never been transferred to the partnership. The appellant admitted the car could not legally be transferred while mortgaged. The jury found the appellant guilty of stealing Sh. 6,082/72 and he was convicted under s.269 of the Penal Code. The appellant had two previous convictions for cheating and was sentenced to three years' imprisonment with hard labour.

Issues

  1. Whether on a charge of theft by agent under s.277(b) of the Penal Code, an accused may be convicted of the minor offence of theft under s.269 by virtue of s.179 of the Criminal Procedure Code.
  2. Whether the jury's verdict of guilty of stealing Sh. 6,082/72 was reasonably justified by the evidence.
  3. Whether the sentence of three years' imprisonment with hard labour was excessive.

Orders

  • Appeal dismissed.

Rules and key headnotes

Criminal Law & Procedure — Theft by Agent — Conviction for Minor Offence — Application of s.179 Criminal Procedure Code
On a charge of theft by agent contrary to s.277(b) of the Penal Code, an accused may be convicted of the minor offence of theft under s.269 by virtue of s.179 of the Criminal Procedure Code, as both sections deal with the offence of stealing and s.269 provides a lesser punishment than s.277(b).
Criminal Law & Procedure — Theft — Partner Stealing Partnership Property — Application of s.267 Penal Code
Section 267 of the Penal Code applies to a charge against a partner in regard to partnership property, and a partner can be convicted under s.269 in regard to partnership property in his hands.
Criminal Law & Procedure — Theft — Claim of Right — Bona Fides
It is not necessarily a criminal offence for a partner to put partnership funds into his own pocket or pay his personal creditors; the Crown must prove the partner acted without a bona fide claim of right. Where entries in partnership accounts purporting to establish a claim of right are found to have been made only to cover defalcations, there is no bona fide claim of right.
Criminal Law & Procedure — Jury Verdict — Partial Conviction — Appellate Review
Where a jury convicts an accused of stealing a lesser sum than charged, the appellate court need not be concerned with the reasons why the jury omitted to convict of the whole amount; the concern is whether the evidence reasonably justified the verdict in convicting of the amount found.

Legislation cited (6)

  • Penal Code s.277(b)
  • Penal Code s.269
  • Penal Code s.267
  • Criminal Procedure Code s.179
  • Criminal Procedure Code s.137(j)
  • Criminal Procedure Code s.137(f)

Cases cited (1)

  • Rex v Roy Hull Home (1944) 11 EACA 107

Full judgment

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

Rex v Biazzos (Criminal Appeal No. 235 of 1946) [1946] EACA 53 (1 January 1946)
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.