Elias v. R. Crim. App. 115-Dodoma-71; 20/1/72; Kwikima Ag. J.

 

Elias v. R. Crim. App. 115-Dodoma-71; 20/1/72; Kwikima Ag. J.

The appellant was found with a stolen watch and money bag three days after they were stolen from the complainant. The appellant was convicted of housebreaking and stealing following the doctrine of recent possession and the appellant’s failure to give a reasonable account as to how he came in possession thereof. The High Court upheld his conviction and his sentence on these two counts. When the appellant’s house was searched some poisonous drugs in the form of procaine penicillin were found besides other suspect articles. The drugs were seized and taken to form the basis for the third charge brought under Cap. 409 section 36 (1) to wit practicing medicine without due licence.

            Held: (1) The prosecution committed a serious blunder in bringing the charge on the third count “in the same charge as they brought the offence of breaking and stealing. This was clearly wrong in terms of section 136 Criminal Procedure Code Cap. 20 which reads: ‘Any offences whether felonies or misdemeanours, may be charged together in the same charge of information if the offences charged are founded on the same facts or form or are a part of a series of offences of the same or a similar character’. It cannot be said from this definition that the offence of practicing medicine was properly joined with that of housebreaking and stealing since it could not have been founded on the same facts nor was it in any way similar to the offence of housebreaking stealing. In this sense therefore, the appellant’s conviction on the offence of unlawfully practicing medicine was bad for misjoinder even assuming there was evidence in support of it …. There was insufficient evidence upon which to hold the appellant guilty of practicing medicine unlawfully. It would not therefore be fair to allow his conviction on this count to stand since such defect is not curable under section 346 of the Criminal Procedure Code. Consequently it is hereby quashed and the sentence thereof set aside. To this extent the appeal is allowed.” (2) “What should have been done was for the prosecution to charge the appellant with the offence of unlawfully possessing poisons under the appropriate ordinance. They had all the evidence to secure his conviction had they done so.”