Msumi J.: Appellant was charged with stealing by servant contrary to sections 271 and 265 of the Penal Code. At the end of the day the learned trial Resident Magistrate acquitted him but he entered a substituted conviction of stealing by agent contrary to D sections 273(b) and 265, presumably acting under the provisions of section 181 of the Criminal Procedure Code. Any way, after being so convicted appellant was sentenced to imprisonment for a good term of seven years. In this appeal appellant is challenging both the conviction and sentence. The learned Senior State Attorney who appeared for E the Republic joined hands with the learned defence counsel from Tanzania Legal Corporation in being of the view that the conviction was faulty hence not supportable.
It is in evidence that appellant was employed by his village council as a cashier. In this capacity he used to receive money from the National Milling Corporation and other crop F authorities on behalf of the village for the purpose of buying sundry crops from the peasants. It is not in dispute that among the money received by him from N.M.C. at the material time was Shs. 10,000/= which was for the purpose of buying millet. It is the strong contention of the prosecution that appellant neither used the money for buying millet nor did he otherwise account for the same. G
To this allegation, appellant's explanation has been, throughout, that he used it in various village projects after he was ordered to do so by the village authority. Appellant maintained that the village leadership sanctioned the use of this money in the alleged projects by authorising the relevant payment vouchers. For this reason, there had been H a protracted adjournment of the case in order to enable either the police or the village council to make available to the court these payment vouchers. But none of them was available and the police and the village authority held each other responsible for it. The learned trial magistrate thus unilaterally ordered the appellant to proceed with his defence I without these vital documents.
The sole ground in support of this appeal is the trial magistrate's finding of guilt A notwithstanding the fact that the prosecution denied the court the availability of the alleged various documents according to which the village leadership authorised the appellant to pay out the money for various village projects. With respect, the force B behind this argument is beyond resistance. It cannot be refuted that as far as N.M.C. was concerned, the recipient of this money was the village council. Since it was not practicable for all the members of the council to keep the money jointly, they engaged the appellant for that purpose. But still the council retained overall control of how the C money was to be used. As between the appellant and the council it was quite legitimate for the latter to direct the former on how the money should have been used. Appellant's sole responsibility was to ensure that so long as the money remained in his hand it was safe. Admittedly appellant knew or ought to have reasonably known that the money was for buying crops from the peasants. D
However, this fact is not derogatory to the village council's cover-all control of the said money. After all the N.M.C. communicated with the village authority, and not with the appellant, in all general matters pertaining to the buying of crops.
In his judgment the learned trial magistrate seemed to believe the appellant that the E money was used in village projects at the instigation of the village council. For this, the trial magistrate was of the opinion that appellant was taken for a ride by the village council. If that is the case then how did it happen that the court convicted him of the theft of the said money? It is obvious that appellant did not have the requisite animus F furandi when he released the money for the said village projects. I don't think that the learned trial magistrate needs to be reminded of the elementary rule of law that in order to convict an accused of theft the prosecution must prove the existence of actus reus which is specifically termed as asportation and mens rea or animus furandi. In the G instant case there was undoubtedly asportation but definitely appellant had not the requisite guilty mind or animus furandi when he used the money for the purpose other than buying millet form the village.
As pointed earlier, the learned trial magistrate cleared the appellant of the charge of stealing by servant and in the alternative he convicted him of stealing by agent. The H reason which he gave for this is found at the end of his judgment when he said:
.... However, I would like to point out at this juncture that the charge is defective in the sense that the accused is not an employee of the N.M.C. so he should have been properly charged I with stealing by agent c/s 273(b) of the Penal Code and not stealing by servant.
With respect, the learned trial magistrate's reasoning is not supported by the clear A wording of section 271 of the Penal Code. For easy reference, I am producing the same fully:
271. If the offender is a clerk or servant and the thing stolen is the property of his employer, or B came into the possession of the offender on account of his employer, he is liable to imprisonment for ten years.
As the charge sheet shows, in this case appellant was employed by Magazini Ujamaa village as an accountant. The N.M.C. advanced the Shs. 10,000/= to the said village for C the purpose of buying crops. Hence when appellant got the said money, he did so on account of the village - his employer. The prosecution was therefore perfectly right to charge him under section 271. It is not true, as the learned trial magistrate appears to think, that section 271 comes into play only where the property belongs to the accused's D employer. It also covers a situation where, though the stolen property does not belong to the employer, it came into possession of the employee or the accused on account of his employer.
But even if the learned trial magistrate's reasoning was sound, still the purported alternative conviction is not supportable. Though he did not put it in clear terms, it is E obvious that the learned trial magistrate depended on section 181 of the Penal Code to support his decision. Commenting on the similar provision of the Criminal Procedure Code of Kenya, the Court of Appeal for Eastern Africa, in Robert Necho and Anor v R. (1951) 18 E.A.C.A. 171 at p. 174 said: F
In order to make the position abundantly clear we restate again that ... where an accused is charged with an offence, he may be convicted of minor offence, although not charged with it, if G that minor offence is of a cognate character, that is to say of the same genus and species.
See also R.v Home (1944) 11 E.A.C.A. 107 and R v Muhoja (1942) E.A.C.A. 70. In this case it cannot be rationally argued that the offence of stealing by agent is cognate to stealing by servant. Both offences belong to the genus and species of the offences of H theft. But I am doubtful if stealing by agent is minor to stealing by servant. Whether or not an offence is minor to the charged one is a question of law. The test in determining it was clearly stated by this court in Ali Mohamed Hassan Mpanda v Rep. [1963] E.A. at 296 when Spry, J. said: I
... first whether the circumstances embodied in the major charge necessarily and according to A the definition of the offence imputed by that charge constitute the minor offence also, and secondly whether the charged major offence gives the accused notice of all circumstances going to constitute the minor offence intended to be substituted. B
Thus in this case for the appellant to be convicted under section 273(b) the prosecution must prove, inter alia, that he came into possession of the alleged stolen property as an C agent of either real owner or special owner. But this requirement is not part of the essential constituents of the offence under section 271. Thus a proof of the offence under section 271 does not necessarily notify the accused of the essential elements of the offence under section 273(b). For this reason the purported substituted conviction in this case is not sustainable. D
After hearing this appeal, I quashed the conviction and set aside the sentence; and ordered for the immediate release of the accused.
The said order was made for the reasons contained in this judgment.
E Appeal allowed.
F