Wakilii

Rex v Kimingi (Criminal Appeal No. 68 of 1947)

East African Court of Appeal · [1947] EACA 72 · 1947 Conviction Quashed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction for storebreaking
Decision
Appellant acquitted and discharged

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

On a charge of storebreaking contrary to s.300(1) of the Penal Code, it is not open to the court to convict of receiving stolen property. Section 179(1) of the Criminal Procedure Code cannot be invoked because receiving is not a minor offence to storebreaking, both being punishable with seven years imprisonment. Section 187, which authorizes conviction for receiving on a charge of stealing, cannot be invoked because storebreaking is a distinct offence from stealing. Evidence of recent possession alone, where the accused gives a reasonable explanation partly accepted by the court and is not in exclusive possession, is insufficient to support a conviction for storebreaking.

Outcome

Appellant acquitted and discharged

Facts

The appellant was charged with storebreaking contrary to s.300(1) of the Penal Code. There was no direct evidence connecting him to the actual breaking and entering. The prosecution case rested on the fact that the appellant and two or three other Africans were found in possession of stolen articles a few hours after the offence was committed. The Magistrate convicted on the basis of this recent possession, presuming the appellant must have taken part in the storebreaking. The appellant gave an explanation as to how he came to be connected with the stolen property. This explanation was not contradicted by evidence, was partly accepted by the Magistrate, and was corroborated by co-accused and other witnesses. The appellant was not in exclusive possession of the stolen articles.

Issues

  1. Whether the evidence of recent possession of stolen property was sufficient to support a conviction for storebreaking under s.300(1) of the Penal Code.
  2. Whether on a charge of storebreaking it is open to the court to convict of receiving stolen property under s.179(1) or s.187 of the Criminal Procedure Code.

Orders

  • Appeal allowed.
  • Conviction and sentence set aside.
  • Appellant ordered to be set at liberty.

Rules and key headnotes

Storebreaking — Conviction for Receiving — Alternative Verdicts
On a charge of storebreaking contrary to s.300(1) of the Penal Code, it is not open to the court to convict of receiving stolen property contrary to s.315(1) of the Penal Code.
Alternative Verdicts — Minor Offences — Section 179(1) Criminal Procedure Code
Section 179(1) of the Criminal Procedure Code, which permits conviction of a minor offence when only some particulars of a charge are proved, cannot be invoked to support a conviction for receiving on a charge of storebreaking because receiving is not a minor offence to storebreaking, both offences being punishable with imprisonment for seven years.
Alternative Verdicts — Storebreaking Distinguished from Stealing
Section 187 of the Criminal Procedure Code, which authorizes a conviction for receiving on a charge of stealing, cannot be invoked on a charge of storebreaking because storebreaking is a distinct offence from stealing.
Recent Possession — Inference of Guilt — Reasonable Explanation
Evidence of recent possession of stolen property may in a proper case support an inference of guilt to storebreaking, but not where the accused gives an explanation which may reasonably be true, is not contradicted by evidence, is partly accepted by the court, and is corroborated by other witnesses.
Recent Possession — Non-Exclusive Possession
Where an accused is not in exclusive possession of stolen articles but shares possession with others, an inference that the accused committed the offence of storebreaking cannot be drawn, as any of the co-possessors could have committed the offence.

Legislation cited (5)

  • Penal Code s.300(1)
  • Penal Code s.315(1)
  • Criminal Procedure Code s.179(1)
  • Criminal Procedure Code s.187
  • Criminal Procedure Code s.174

Cases cited (1)

  • Rex v Maganbhai Valabhai Patel and Haribhai Apabhai Amin (16 K.L.R. 130)

Full judgment

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

Rex v Kimingi (Criminal Appeal No. 68 of 1947) [1947] EACA 72 (1 January 1947)
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.