THE Full Court, on appeal from a magistrate’s court conviction, set aside the conviction but freed Appellant Evelyn on a charge of larceny of fruit trees.
That Court found that the magistrate ought not to have convicted the man for the offence charged but had sufficient evidence to amend the charge to call for a defence of unlawful possession.

But because of the small value of the booty, Chief Justice J. A. Luckhoo who delivered the judgment for the Full Court, said: “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.”
Under the Criminal law – the man was charged with Larceny of fruits growing on open land – Proof of simple larceny of fruits but not that fruits were growing on open land – Charge as laid cannot be sustained – Value of fruits small — Defence to charge of unlawful possession not called for-Criminal Law (Offences) Ordinance Cap.14.s.74- Criminal Law (Procedure) (Ordinance, Cap 15s.41 (5) and (7) .

The facts of the case disclosed: The appellant was seen in T’s open farm in a spot where T had bearing orange and tangerine trees.
The appellant ran carrying under his arm a cloth bundle which he concealed under some grass in other land. On being challenged he denied that he had any bundle, but the bundle was
nevertheless discovered at the spot where he was seen to conceal it, and was found to contain oranges and tangerines.

The appellant, who had no farm in that area, offered to pay T for the oranges and tangerines and asked him not to make any noise. The Magistrate concluded that the fruits were picked from the appellant on T’s land and convicted him of larceny of fruits growing on open land contrary to s.74 of the summary jurisdiction (Offences) Ordinance, Cap14. On appeal –

(ii) the circumstances under which the Appellant was found in possession of the fruits 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 ,Cap 15 , but as the value of the fruit was small the matter would not be remitted.

Appeal allowed.
J. C. Gonsalves-Sabola for the appeIlant.
E.A. Romao, Senior Crown Counsel for the respondent.
The Chief Justice in the judgment of the Court: The appellant Carlton Evelyn was convicted by a Magistrate of the Georgetown Judicial District on a charge of larceny of fruit, contrary to s. 74 of the Summary Jurisdiction. 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 open land.

On the 5th Janury, 1960, Viola Thornhill went to her farm about 09:00hrs. On entering the farm, she heard a noise in her farm and she saw the appellant in a spot where she had been bearing orange and tangerine trees.
The appellant ran 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 VT) who also has a farm at Mocha went to the spot where Viola Thornhill had seen the appellant conceal the bundle . There they discovered the bundle which was found to contain the oranges and the tangerines.

There was evidence that the respondent did not have a farm in that area. He offered to pay Viola Thornhill for the oranges and tangerines and asked her not to make any noise.
The appellant/defendant did not lead a defence or give evidence.
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 that the oranges and tangerines came from 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 convict the appellant of the offence charged even if simple larceny was disclosed by the evidence.
The appeal was allowed and the Court ordered that there will be no order as to costs,