Wakilii

Rex v Patel and Another (Cr. App. Nos. 4-1935 and 5-1935)

East African Court of Appeal · [1935] EACA 138 · 1935 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction for receiving stolen property where appellants were originally charged with house breaking
Decision
Appellants discharged; Crown free to institute fresh proceedings

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

On a charge of house breaking, a person cannot be convicted of receiving stolen property without being formally charged with that offence. Section 174 of the Criminal Procedure Code, which permits conviction for a different offence where part of a charge is proved, cannot be invoked to support a conviction for receiving where the accused is charged with store breaking. The failure to charge the accused with the offence of which they were convicted is a fatal defect vitiating the trial.

Outcome

Appellants discharged; Crown free to institute fresh proceedings

Facts

The appellants were charged with breaking into a store and committing a felony therein contrary to section 282(1) of the Penal Code. Before entering their defence, counsel submitted the evidence did not support the charge. The police prosecutor stated there was ample evidence for theft or receiving. Defence counsel requested the appellants be formally charged with the offence they were alleged to have committed so they could answer the particular charge. The magistrate refused this request, stating the appellants had already been charged at the beginning of the case. The appellants were ultimately convicted of receiving stolen property despite never being formally charged with that offence.

Issues

  1. Whether a person charged with house breaking can be convicted of receiving stolen property without being formally charged with that offence.
  2. Whether section 174 of the Criminal Procedure Code permits conviction for receiving where the charge is house breaking.

Orders

  • Appeal allowed.
  • Convictions and sentences set aside.
  • Appellants discharged.
  • Order leaves the Crown free to take such further proceedings as may be considered advisable.

Rules and key headnotes

Criminal Procedure — Charges — Conviction for Offence Not Charged
On a charge of house breaking, a person cannot be convicted of receiving stolen property where they have not been formally charged with receiving.
Criminal Procedure Code s.174 — Alternative Convictions — Scope and Limitations
Section 174 of the Criminal Procedure Code, which permits conviction for a different offence where part of a charge is proved, cannot be invoked to support a conviction for receiving where the accused is charged with store breaking, as the miscellaneous provisions of the Code do not permit a person charged with house breaking to be convicted of receiving.
Criminal Procedure — Fair Trial — Right to Know Charge
Where the prosecution indicates the possibility of conviction for an offence different from that charged, and defence counsel requests that the accused be formally charged with that offence to enable them to answer it, refusal to frame such a charge is not justified and constitutes a fatal defect vitiating the trial.

Legislation cited (4)

  • Penal Code s.282(1)
  • Penal Code s.295
  • Criminal Procedure Code s.174
  • Criminal Procedure Code s.173-181

Cases cited (1)

  • R v Bailey (13 Cr. App. R. 27)

Full judgment

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

Rex v Patel and Another (Cr. App. Nos. 4-1935 and 5-1935) [1935] EACA 138 (1 January 1935)
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.