Criminal Law – Penal Code, sections 270, 389, and 390 – Attempt to steal – Necessary ingredients of the offence – Attempt as defined in section 389 of the Penal Code.
Case summary
The accused was charged with attempting to steal a coat from a parked car which was securely locked. He was seen “hovering around it and trying to open a window”. He was convicted. On appeal, it was argued that an attempt to open the door of the car was equivocal in its nature and that it did not constitute an attempt to steal the coat which was in it.
Held (2nd January 1957):
The necessary ingredients of an attempt, as defined in section 389 of the Penal Code, are: (a) An intention to commit an offence; (b) A beginning to put the intention into execution by means adapted to its fulfilment; and (c) A manifestation of the intention by some overt act.
In the present case, the accused had tried to force the window of the car, had acted furtively, moved off as soon as the police arrived, and had falsely denied tampering with the car at all.
Upon these facts, the Magistrate could reasonably regard the accused as having the specific purpose of stealing the coat.
Appeal dismissed.
Cases cited: R. v. Eagleton, Dears. 515, 538; R. v. Roberts, Dears. 139; R. v. Cope, 16 Cr. App. R. 77; R. v. Bloxam, 29 Cr. App. R. 37; R. v. Robinson [1915] 2 K.B. 342.
[Editor’s Note: The test adopted by Park, B., in R. v. Eagleton (supra) and followed in R. v. Robinson (supra), namely “whether there was any further act on the prisoner’s part remaining to be done”, is not law in Kenya. It is expressly negatived by section 389 of the Penal Code according to this decision.]
Counsel:
G.S. Sandhu for the appellant.
Keysell, Crown Counsel, for the Crown.
Reported by:
A. Q. Malik, Esq., Resident Magistrate, Nairobi.
