Full Court frees fruit thief on technicality

IN 1961, Viola Thornhill, who had an orchard on open land at Mocha, East Bank Demerara, complained to a magistrate that one Carlton Evelyn had stolen her fruits.

Evelyn, Thornhill said, was seen on her land with a parcel under his arm, and had hidden said parcel in some bushes. The parcel when collected contained oranges and tangerines.
Accompanied by a witness, Thornhill challenged Evelyn, who at first denied that he ever had a parcel but later begged the complainant for a chance and told her to hush her mouth.
However, at trial, the magistrate found that Evelyn did pick the fruits off the trees owned by Thornhill, and found him guilty as charged. Dissatisfied with the ruling, he appealed, and hired Mr. J. C. Gonsalves-Sabola to represent him. The respondent, Thornhill, took Senior Crown Counsel Mr. E. A. Romao as her lawyer.
At the hearing, the Full Court agreed with Appellant’s counsel that the magistrate was not competent enough to find his client guilty as charged, but could have called for a defence of unlawful possession. Hence, the appeal was allowed and the conviction and sentence set aside.
The Full Court was constituted by Chief Justice Mr. Joseph Luckhoo and Justice Sydney Miller.
The facts of the case disclosed that Evelyn was seen on Thornhill’s farm in a spot where she had a stand of orange and tangerine trees.
On realizing he had been caught out, Thornhill allegedly ran, carrying under his arm a cloth bundle, which he concealed under some grass elsewhere.
When challenged, he denied ever having any bundle, but on its recovery from the spot where he was seen to conceal it, it was found to contain oranges and tangerines.
Evelyn, who had no farm in that area, offered to pay Thornhill for the oranges and tangerines, and begged her not to make a scene. The magistrate, having come to the conclusion that the fruits were indeed harvested by the appellant from Thornhill’s property, convicted him of ‘larceny of fruits growing on open land’, which was in contravention of Section 74 of the Summary Jurisdiction (Offences) Ordinance, Chapter 14.

In the circumstances, the Full Court held that:
(i) Even if it could be inferred from the evidence that the fruits came from Thornhill’s farm, and were her property, the evidence was insufficient to sustain a charge of stealing fruit growing on open land; and that it was not open to the magistrate to convict of that offence, even if simple larceny was disclosed;

(ii) the circumstances under which the appellant was found in possession of the fruit warranted the magistrate to call for a defence to the charge of unlawful possession, thereby invoking the provisions of Section 41 (5) and (7) of the Summary Jurisdiction (Procedure) Ordinance, Chapter 15; but as the value of the fruit was small, the matter would not be remitted.
Chief Justice Luckhoo, delivering the judgment of the Court, said:

“The Appellant, Carlton Evelyn, was convicted by a magistrate of the Georgetown Judicial District on a charge of larceny of fruit, contrary to Section 74 of the Summary Jurisdiction (Offences) Ordinance, Chapter 14. From his conviction, the appellant has appealed.
“The evidence for the prosecution disclosed that Viola Thornhill, the virtual complainant, is a farmer who cultivates oranges and tangerines on her farm at Mocha Back, East Bank, Demerara.
“Her farm is on open land. On the 5th January, 1960, Viola Thornhill went to her farm at about 9am. On entering her farm, she heard a noise in the bush in her farm, and she saw the appellant in a spot where she had bearing orange and tangerine trees.
The appellant was carrying a cloth bundle under his arm. She saw the appellant conceal the bundle under some grass on other land. Viola Thornhill challenged the appellant, who denied that he had any bundle, but Viola Thornhill and one Alphonso Thornhill (not a relative of Viola Thornhill), who also has a farm at Mocha Back, went to the spot where Viola Thornhill had seen the appellant conceal the bundle.
“There they discovered the bundle, which was found to contain oranges and tangerines. The appellant did not have a farm in the area. He offered to pay Viola Thornhill for the oranges and tangerines, and asked her not to make any noise. The magistrate came to the conclusion that the oranges and tangerines were picked by the appellant on Viola Thornhill’s land.
“Counsel for the appellant has submitted that even if it can be inferred, from the evidence, that the oranges and tangerines came from Viola Thornhill’s farm, and were her property (which is not admitted), there was no proof that the offence of stealing fruit growing in open land had been committed.
“Counsel contended, and we think quite rightly, that it was not open to the magistrate to commit the appellant of the offence charged, even if simple larceny was disclosed by the evidence.
“We agree that there is insufficient evidence to sustain the charge laid, but the circumstances under which the appellant was found in possession of the fruit, in our opinion, warranted the magistrate to call for a defence to the charge of Unlawful Possession, invoking the provisions of; s. 41 (5) and (7) of the Summary Jurisdiction (Procedure)Ordinance, Chapter 15.
“However, as the value of the fruit is so small, we do not think that the matter should be remitted to the magistrate, but would simply allow the appeal and set aside the conviction and sentence.
“In the circumstances, there will be no order as to costs of the appeal. Appeal allowed.”

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