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Chapter 15 THEFT AND ALLIED OFFENCES Cases of theft account for quite a substantial percentage of cases tried in subordinate courts. It is, therefore, imperative that a public prosecutor should have a reasonably intimate knowledge of this and allied offences. Fortunately, the Penal Code provides an almost exhaustive definition of what constitutes theft. Besides, there is a large body of decided cases on the subject which a public prosecutor can consult where he finds the statutory provisions either inadequate or incomprehensible. Theft Section 258(1) of the Penal Code defines theft as the fraudulent taking, without claim of right, of anything capable of being stolen, or the fraudulent conversion to the use of any person other than the general or special owner of such thing. Subsection (2) of that section lists situations in which the offence will be said to have been committed. From those provisions, we find the following elements of the offence of theft: (1) that there was a thing capable of being stolen within the definition of that phrase in section 257 of the Code; (2) that there was a conversion or a taking, that is, that the thing was actually moved or caused to be moved; and (3) that the accused did so with a fraudulent intent. Was it a thing capable of being stolen? Section 257 of the Penal Code lists things that are capable of being stolen. Among these are all moveable inanimate things which are the property of another, tame animals, and dead bodies of wild animals. What is important to bear in mind is that the thing alleged to have been stolen is moveable or can be caused to move, and is the property of some person. Land and houses, for example, being immoveable things, are incapable of being stolen. That there was a taking In a charge of theft, it is essential to prove that the thing alleged to have been stolen was moved or caused to be moved. In other words, it must be proved that there was asportation. Where, for example, a pick-pocket dips his hand into the coat pocket of another and holds that other’s purse but is caught before he moves it out, he is not guilty of theft because there has been no “taking” or asportation. He could, however, be convicted of attempted theft. If, however, he moves it from the pocket but is caught before he moves away with it, then he is guilty of theft because there has been an asportation (see Rwenzola v. Republic, (1971) HCD n. 312). That it was with a fraudulent intent and without claim of right A person is deemed to have taken anything with a fraudulent intent if there is evidence to prove: (a) that he did so with an intent to permanently deprive of it the general or special owner of the thing; or (b) that he did so with an intent to use the thing as a pledge or security; or (c) that he did so with an intent to part with the thing on condition as to its return which the person taking or converting it may be unable to perform; or (d) that he did so with an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time he took or converted it; or (e) in the case of money, an intent to use it at the will of the person who takes it or converts it, although he may intend afterwards to repay the amount to the owner (see s. 258(2) PC). A few decided cases may help to illustrate the application of these provisions . In the case of Saidi Ally v. Republic, (1968) HCD n. 98, the accused entered a truck and sorted through its contents picking out what he desired. Just about when he was to depart, the owner arrived and locked him in the motor vehicle. The accused was then charged with the offence of stealing from a motor vehicle. The High Court held that although the asportation requirement for a conviction for simple theft is fulfilled by any movement of the item involved, here the charge was the graver one, and that for a conviction for this offence it must be shown not merely the items were moved, but that they were removed from the vehicle. In the case of Issa Mwandachi v. Republic, (1967) HCD n. 414, the evidence against the...

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