Sisya, J.: For a conviction to stand for the offence of being rogue F and vagabond contrary to section 177(2) of the Penal Code it must be established, beyond all peradventure, that the convict was going about as gatherer or collector of alms, or endeavouring to procure charitable contributions of any nature or kind, under false or fraudulent pretence. Not even a grain of evidence was adduced towards this Gend in the instant matter in relation to this appellant. Yet he was, on count one, charged with and convicted of that offence, that is that of being rogue and vagabond contrary to section 177 (2) of the Penal Code, and he was conditionally discharged for a period of twelve months. The conviction is illegal and it cannot, therefore, be allowed to stand. H The same is hereby quashed and the purported order of conditional discharge passed thereon is set aside.
On count two the appellant was charged with and convicted of the offence of giving false information to a person employed in the public service contrary to section 122(b) of the Penal Code. The salient facts of the Prosecution case show that the appellant reported I to the Police
that he had given PW3 some money, proceeds of a meat business in which he and PW2 A were interested, for onward transmission to the latter, that is PW2 , but PW3 had misappropriated the same. PW3 was arrested in connection with the matter but he was subsequently released. In their evidence in the Court below both PW2 and PW3 denied that PW3 ever handled any cash from the said meat business. This was contradicted by B the appellant and one Apelesi Moses Shemkingo (DW3) who worked as a labourer in the appellant's butchery at the material time. These two persons asserted that PW3 was actually the person who was the cashier at the appellant's butcher. The learned trial Magistrate rejected the defence story simply by reason of the fact that the handing over C was not reduced in writing. The appellant retorted that there was no handing over certificate because of mutual trust that then existed between them. The Police officer who investigated the case, PW4, had earlier on told the trial Magistrate at the hearing of the case that the appellant had no proof that he handed over the money to PW3. D
With due respect to the learned trial Magistrate the mere fact that the appellant failed to prove his allegation does not, ipso facto, mean that the report he made to the Police was false. For a conviction on count two to stand it was incumbent upon the Prosecution to prove, among other things, that the information which the appellant gave E was false and that he himself knew or believed that the same was false. On the evidence on record it cannot be said with moral certainty and to the exclusion of every reasonable doubt that the appellant deliberately made the report which he himself knew was false. For this reason the conviction on count two too is quashed and the sentence passed thereon is set aside. F
The record of proceedings of the trial Court shows that when the charges were being read out to the appellant he, i.e. the latter, behaved in a manner which, by every civilized standard, was disrespectful. The learned trial Magistrate took cognizance of the contempt of Court and, following the procedure laid down in the case of Joseph G Odhengo s/o Ogongo v R. (1954) 21 E.A.C.A. 302 proceeded to deal with him under Section 114 (1)(a) of the Penal Code. The appellant refused and/or neglected to answer relevantly when given an opportunity to do so. He cannot now be heard to complain against the course of action pursued by the trial Magistrate. If anything the H appellant, now has himself to blame because he, albeit unwillingly, forfeited his right to be heard on the point. He was eventually sentenced to three months imprisonment. On my evaluation of what transpired at the material time I am satisfied that the conviction on this count was proper and it is hereby upheld. In the final result this appeal succeeds to the extent indicated. In all other respects it is dismissed. I
Order accordingly.
A