The mens rea for theft may be conveniently termed the “animus furandi.” Alternatively, it may be said that the accused acted “fraudulently.” In the great majority of case, the prosecution will seek to prove that the accused took or converted the thing with the intent or permanently depriving the owner of it. The intent to temporarily deprive the owner of the thing is insufficient. Thus, it is not theft to take a motor car without the owner’s permission, if the driver intends to return it or abandon it in a place where it can be traced by the owner. But the driver is guilty of conversion of a vehicle not amounting to theft, and of taking and driving away a motor vehicle without the owner’s consent. Where a person unlawfully takes a thing from its owner and then tries to sell it back to the owner, that is theft. It is not theft unless the taker so appropriates the thing as wholly to repudiate the owner’s interest in it. In R. v. Holloway , the accused was employed to dress skins of leather by a tanner. The workmen were paid on piece rates for work done. The accused took some of the tanner’s skins from a store with intention of getting paid for the work on the skins as his owner. In this way the skins would be returned to the owner. It was held that this was not larceny as there was no intention to deprive the owner wholly of his property. On another charge, he might have been convicted of an attempt to obtain money by false pretence.
An honest claim of right is a defence to any charge relating to property. A person has a claim of right where he honestly asserts what he believes to be a lawful claim, even though it is unfounded in law or fact. According to Glanville Williams: “The cases go very far in saying that any belief in a legal right to take the thing, however absurd and even though the matter involves questions of law, prevents the taking from being larceny. It may be hard for a lawyer to credit the abysmal ignorance of law that may be involved in a genuine claim of right but when doubt arises the benefit of it must be given to the accused.” Thus, the courts have held that an honest claim of right may exist even where the accused takes by force against the will of the owner, or where he obtains possession by a false pretence or a trick, or where he demands money with menaces. In Oyat v. Uganda , it was said that when the accused retained a bull and kept it until the owner paid compensation, he was entitled to do so because his claim was honest and based on reasonable grounds. Section 252 of the PCA provides for the general punishment of theft and a person convicted is liable, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for five years.
2. ROBBERY AND EXTORTION (Section 272-279)
Section 272 of the PCA defines robbery to the effect that any person who steals anything, and, at or immediately before or after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained is guilty of robbery. In Uganda, a recent amendment to the Penal Code provides that in the case of aggravated robbery the offender “shall be liable on conviction to suffer death.” It is arguable that this lays down only a maximum penalty and leaves the court with discretion to impose a lesser penalty. The point must await judicial determination. It is also provided, in Uganda, that any robbery on any public highway carries a minimum sentence of 10 years’ imprisonment. Section 273 (1) of the PCA provides for that it is simple robbery while 273 (2) where a deadly weapon is used is aggravated robbery. In simple robbery any force suffices while in aggravated robbery, a deadly weapon must be used. A deadly weapon is any instrument made or adapted for shooting, stabbing or cutting and any which if used for offensive purposes can cause death. Perhaps the key words in the offence are “uses or threatens actual violence.” Violence is defined in the Shorter Oxford Dictionary as meaning; inter alia, “The exercise of physical force so as to inflict injury on or damage to persons or property.” Provided that some injury or damage is caused, it seems that the violence need not be of any particular degree. In Uganda v. Muhamud Nsubuga, the accused was convicted of simple robbery under s. 272 and 273 (1) (a). the complainant while returning home met the two appellants. As he passed, the first appellant grabbed his arm. The second appellant grabbed the other arm and removed some money from him. On appeal, it was argued that the offence had not been proved since no violence had been used. It was held that in case of robbery, the prosecution must prove that force was used against the complainant against his will to remove the property from him. In Uganda v. Owori, the complainant was slapped and property was removed from him. It was held that this was enough violence to support a charge of simple robbery. In Wasajja v. Uganda, it was held that once it is proved that a weapon is deadly, then using it to intimidate the victim, pointing it at him is sufficient threat in s. 273 (2). The prosecution must prove that there was a deadly weapon in the sense that it is capable of causing death. Claim of right may be a defence to robbery in certain circumstances, as where A assaults B in order to obtain payment of a debt. But the defence will not succeed unless A honestly believes that he has a legal right to take action, and (presumably) no excessive force is used.
Under Extortion, a person is guilty of a felony who: with intent to extort or gain anything from any person, and knowing the contents of the writing, causes any person to receive any writing, demanding anything from any person without reasonable and probable cause, and containing threats of any injury or detriment of any kind to be caused to any person, either by the offender or any other person, if the demand is not is complied with (demanding by written threats). Maximum penalty is fourteen year’s imprisonment. A person is guilty of a felony who with intent to extort or gain anything from any person accuses or threatens to accuse any person of committing any felony or misdemeanor or of offering or making any solicitation or threat to any person an inducement to commit or permit the commission of any felony or misdemeanor. (Attempts at extortion by threats to accuse another of a crime). Maximum penalty is three years’ imprisonment, or fourteen years’ imprisonment where threat to accuse of a specified crime. A person is guilty of a felony who with intent to steal any valuable thing demands it from any person with menaces or force (demanding property with menaces). Attempts at extortion by threats to accuse another of a crime are punishable with a period of imprisonment not exceeding three years, unless the accusation concerns a specified crime. The specified crimes include offences punishable with death or life imprisonment, offences against morality and assaults with intent to commit sodomy. Attempts at extortion by threats of accusation of these offences carry a maximum penalty of imprisonment for fourteen years.
3. BURGLARY AND HOUSEBREAKING
Sections 280 and 281 provide for the offences of housebreaking and burglary. Any person who breaks any part whether external or internal of a building, opens by unlocking or pulling any door or window is deemed to break the building. Any person who breaks and enters any building used as a human dwelling with intent to commit a felony therein or having entered the building breaks out commits a felony termed housebreaking and is liable to imprisonment for seven years. If the offence is committed during day, it is called housebreaking. But if it occurs at night it is called burglary. In Uganda, the period between half-past six in the evening and half-past six in the morning is defined as night. It was held by the Court of Appeal for Eastern Africa in R. v. Damas s/o Herman, that burglary and housebreaking are not completely different offences. Burglary is an aggravated form of housebreaking, which carries an enhanced sentence if the addition element, commission in the night, is both charged and proved. If the time of the offence is not so charged and proved. If the time of the offence is not so charged and proved, the offence is nevertheless housebreaking, no matter at what time it may be committed. In English Law, it has been held that it is a breaking to push open an unfastened window, but not if the window was already partly open.
4. RECEIVING OR RETAINING STOLEN PROPERTY (s. 298-301)
s. 298 provides that any person who receives or retains any chattels, money or valuable security knowing or having reason to believe the same to have been feloniously stolen is guilty of a felony and is liable to imprisonment for fourteen years. A person is guilty of a misdemeanor who receives or retains any chattel, money, valuable security or other property whatsoever, knowing or having reason to believe the same to have been unlawfully taken, obtained, converted or disposed of in a manner which constitute a misdemeanor. The section requires that a person receives or retains property and is in possession, knowing or having reason to believe that it is feloniously, that the accused dishonestly undertook or assisted in retention, removal or otherwise of the goods. It has to be proved that the property was actually stolen. In the English case of DPP v. Nieser, a Divisional Court held that when the property has been stolen or obtained by a felony, it is necessary for the prosecution to charge and prove that the receiver knew that the property had been obtained by some felony, but not necessarily by the actual felony committed. For purposes of proving guilty knowledge evidence can be given to show the fact that other property stolen within the period of 12 months preceding the offences charged was found in his possession. This is referred to as the doctrine of recent possession. The prosecution can use the fact that within the five years preceding the offence charged he/she was convicted of an offence involving fraud or dishonesty provided that the offender is so notified and that the property was actually found in his possession. It should be noted that there exists two offences here i.e. receiving stolen property and retaining stolen property. In retaining stolen property, the initial possession of the property is lawful, whereas in receiving stole, the person receives the property knowing that it is stolen. It should also be noted that in applying the doctrine of recent possession, it is basically circumstantial evidence which will point to the accused’s guilt if no other explanation is given. Consequently, court will look at the circumstances of the possession in order to infer guilt knowledge or not.
5. FORGERY AND UTERRING FALSE DOCUMENTS
Section 322 states that forgery is the making of a false document with intent to defraud or deceive. A document under s.323 does not include a trade mark or any other sign used in connection with articles of commerce. In other words, a document is all about those excluded. S. 326 provide for the punishment of forgery so that any person who forges any document is guilty of an offence and is liable to imprisonment for three years unless some other punishment is provided. Under s.330, any person who knowingly and fraudulently utters a false document is guilty of the same kind of offence as of forgery. Uttering means and includes using or dealing with and attempting to induce any person to use, deal with or act upon the thing in question which in case of forgery is a document forged. In Baigumamu v. Uganda, it was held that the falsity of a document must be as to the document and not contents. Forgery is making of false documents with intent to defraud or deceive. So the major ingredient is to establish that the document is false and then the intention to defraud comes second. In Mujobe v. Uganda, the Court held that falsity had to be the purport of the document not its contents and the document had a lie to tell about itself.
6. EMBEZZLEMENT AND CAUSING FINANCIAL LOSS
s. 257 and 258 provides for circumstances when a servant steals or ruins the property of his employer in the course of his employment. Under s. 257, a person who is employed by government or public body, or who is a director, officer or employee of a company or corporation or who is a clerk or servant of an association or religious organization, steals any chattel, money or valuable security being the property of his employer, received or taken in possession by him for account of his employer and by virtue of his office is guilty of embezzlement and shall be sentenced to a term of not less than three years and not more that 14 years. Section 258 provides for causing financial loss. Any person who is employed by government, a bank, a credit institution, an insurance company or public body who in the performance of his duties, does an act or omits to do any act knowing or having reason to believe that such act or omission will cause financial loss is guilty of the offence of causing financial loss and shall be liable for conviction to a term of not less than three years and not more than 14 years. It must be shown that the property was received by the employee in the course of his employment.
7. ISSUE OF FALSE CHEQUES
Section 364 of the Penal Code prohibits issuing of false cheques. Any person who without reasonable excuse proof of which shall lie on him issues any cheque drawn on any bank, where there is no account with any bank when he has no reasonable ground, proof of which is on him, to believe that there are funds on the account to pay the amount specified within the normal course of banking business or with intent to defraud stops the payment of or countermands any cheque issued by him is guilty of an offence and is liable on conviction to imprisonment not exceeding 10 years or a fine not less than ten times the amount presented on the cheque. However, under s. 364 (2), if a person is issued with a cheque and presents it three months later for payment, the issuer cannot be guilty if the cheque bounces.
However, Criminal Law as a branch of law does not only cater for property alone. It also accommodates others like person, morality, public order and administration of lawful authority.
Reference:
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Criminal Law, Smith & Hogan, 5th ed.
- The 1995 Constitution
- The Penal Code Act, cap 106
4. LDC lecture notes
1995 Constitution of Uganda
R. v. Bernhard (1938)2 K.B. 264
R. v. Boden (1844)E.R. 863
R. v. Williams (1836) 173 E.R, 158
s. 273 cap. 106 (as amended by the Penal (Amendment) Act 1966)
R. v. Haines and Harrison (1821) Russ &Ry 451