REPUBLIC vs. MOSHIE [1975]DLHC435

Date	1975-12-23
Suit No.
Citation No.	[1975]DLHC435

MENSA BOISON J.

C. AGBANU SENIOR STATE ATTORNEY FOR THE REPUBLIC.

W. Y. OPPONG FOR THE FIRST RESPONDENT.

DR. S. K. ANKAMAH FOR THE SECOND RESPONDENT.

[1975]DLHC435
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC <o:p></o:p>vs. <o:p></o:p>MOSHIE<o:p></o:p>&nbsp;[HIGH
COURT, SUNYANI]<o:p></o:p>[1976] 2 GLR 42<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
23 DECEMBER 1975.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

C. AGBANU, SENIOR STATE ATTORNEY, FOR THE
REPUBLIC.<o:p></o:p>

W. Y. OPPONG FOR THE FIRST RESPONDENT.<o:p></o:p>

DR. S. K. ANKAMAH FOR THE SECOND RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

MENSA BOISON J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF MENSA BOISON J.<o:p></o:p>This is
an appeal by the Republic against the decision of the District Court Grade II,
Dormaa-Ahenkro, by which the first accused-respondent was absolutely discharged
on his conviction on a plea of guilty to conspiracy to steal and stealing the
sum of ¢60.00 contrary to sections 23 and 124 (1) respectively of the Criminal
Code, 1960 (Act 29). There is further an appear against the sentence of a fine
imposed on the second accused-respondent for forgery of a document, contrary to
section 159 and uttering a forged document contrary to section 169, both under
Act 29.<o:p></o:p><o:p>&nbsp;</o:p>The
offences arise from lotto stakes. On 5 December 1974 the first accused staked a
ticket No. NC.299/567371 for 20p and NB.761/468004 for 10p. The first accused
lost his stakes on those tickets which were drawn on 7 December 1974. On the
following week the first accused staked on some other numbers for the draw of
14 December 1974 —which proved unsuccessful. The first accused, however, found
that the two previous numbers on which he had lost in the draw of 7 December
1974, had come out as the winning tickets for the draw of 14 December 1974. The
first accused consequently got the second accused to alter the dates of the two
earlier tickets to coincide with the draw of 14 December 1974, and thereby was
able to collect ¢60.00 prize money from the lotto seller. On detection the two
were charged with the various offences already mentioned.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>It would
appear that on pleading guilty the first accused must hive given some explanation.
This was not put down verbatim; but instead the magistrate made these comments:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“Indeed
it appears to me that the accused person herein being illiterate was influenced
by the second accused who is literate and who hired him to commit the offence.
He was indeed blindfolded over the whole transaction. The accused is convicted
on his own plea and sentenced on both counts but cautioned and discharged on
both counts. R/O. The ¢60.00 recovered to be returned to the complainant.”<o:p></o:p><o:p>&nbsp;</o:p>The
Republic complains against the order of absolute discharge of the first accused
as being wrong exercise of discretion under section 353 of the Criminal
Procedure Code, 1960 (Act 30). The provision is as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“353. (1)
Where a Court by or before which a person is convicted of an offence (not being
an offence the sentence for which is fixed by law) is of opinion, having regard
to the circumstances including the nature of the offence and the character of
the offender, that it is inexpedient to inflict punishment and that a probation
order is not appropriate, the Court may make an order discharging him
absolutely, or, if the Court thinks fit,, discharging him subject to the
condition that he commits no offence during such period, not exceeding twelve
months from the date of the order, as may be specified therein.”<o:p></o:p><o:p>&nbsp;</o:p>Matters
to be considered in the exercise of the discretionary power will in my opinion.
include:<o:p></o:p><</main>