Wakilii

Rex v Said (Cr. App. No. 134 of 1938)

East African Court of Appeal · [1938] EACA 196 · 1938 Conviction Quashed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction for being a rogue and vagabond under Penal Code s.167(4)
Decision
Appellant released

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal allowed the appeal and set aside the conviction. Section 167(4) of the Penal Code requires proof that the accused was 'found wandering' in circumstances suggesting an illegal purpose. The charge alleged only that the appellant was 'found' gambling but contained no allegation of wandering. The governing words 'found wandering' are essential ingredients of the offence and cannot be satisfied by proof of being 'found' alone. The conviction was unsustainable.

Outcome

Appellant released

Facts

On 9 June 1938 at about 5.30 p.m., the appellant was found in Miembe Tyari gambling for money by means of a three cards trick with other natives. When arrested, the other natives ran away. The appellant was charged with being a rogue and vagabond under Penal Code s.167(4). The particulars alleged he was found in circumstances suggesting he was there for an illegal purpose, namely gambling. The appellant pleaded guilty and was convicted and sentenced to one year's imprisonment, the maximum sentence under the section.

Issues

  1. Whether a conviction under Penal Code s.167(4) can be sustained where the charge does not allege that the accused was 'found wandering', an essential ingredient of the offence.

Orders

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

Rules and key headnotes

Criminal Law & Procedure — Rogue and Vagabond — Essential Ingredients — Penal Code s.167(4)
The offence of being a rogue and vagabond under Penal Code s.167(4) requires proof that the accused was 'found wandering' in circumstances suggesting an illegal purpose. The words 'found wandering' are the governing words of the section and constitute an essential ingredient of the offence.
Statutory Interpretation — Penal Statutes — Essential Elements — Penal Code s.167(4)
In interpreting Penal Code s.167(4), the governing words are 'found wandering', not merely 'found'. A charge that alleges only that the accused was 'found' in circumstances suggesting an illegal purpose, without alleging wandering, does not disclose the offence under the section.
Criminal Law & Procedure — Charge — Particulars — Essential Ingredients
Where the charge and plea contain no allegation of an essential ingredient of the offence, a conviction cannot be sustained even where the accused has pleaded guilty.

Legislation cited (3)

  • Penal Code s.167(4)
  • Gambling Ordinance Cap. 72
  • Gambling Regulations No. 7/1901

Full judgment

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

Rex v Said (Cr. App. No. 134 of 1938) [1938] EACA 196 (1 January 1938)
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.