BUTLER LLOYD, Ag.C.J., NIGERIA, BROOKE AND MARTINDALE, JJ.
The appellants in this case were charged with stealing contrary to section 390 (8) (b) of the Criminal Code. The particulars of the offence were that they stole the sum of £200 in currency notes from one Joseph Ajagbe, which sum had been entrusted to them by him for the purpose of changing into coin.
The evidence showed clearly that the appellants acting in combination and taking advantage of the shortage of alloy coin which existed at that time, induced Ajagbe to hand over to them 200 £1 notes for the purpose of getting them changed into coins.
The learned trial Judge found the appellants not guilty of an offence under the subsection charged, but guilty of an offence under section 390. He clearly had power to do so under section 58, subsection 1, of the Criminal Procedure Ordinance, provided that the facts proved constituted an offence under that section. In our opinion this was clearly the case. The offence took the form of what is known in English Criminal Law as larceny by trick, in that the possession of the goods was obtained animo furandi, the owner not intending to part with his entire right of ownership, but with the temporary possession only. By the English Larceny Act of 1916 a person steals who with- out the consent of the owner . . . takes and carries away anything capable of being stolen . . . and by the same Act the expression “takes” is defined as including constructive taking in cases where the possession is obtained by a trick, by intimidation, or in certain other circumstances. Without an extension of the meaning of the word “takes” there would be no larceny in English law in cases where the owner consents to part with the possession. It is to be noted that no new law was created by these provisions of the Larceny Act of 1916, which were merely declaratory of the law then existing. The law of Nigeria is however different. Section 383 of the Criminal Code in which larceny is defined has no reference to the consent of the owner and there is therefore no need for any special provision as to constructive taking.
Some confusion of thought appears to have arisen from the occurrence of the word “trick” in section 421 of the Criminal Code, an offence against which is described in the side note as cheating, but we agree with the Acting Solicitor-General that the only purpose of this section was to provide for the common law offence of cheating, which includes various forms of trickery, and was not intended to apply, to the exclusion of section 390, to all cases where possession is obtained by a trick. The position of the section in the Code, the use of the word “obtains” instead of “takes,” and the fact that an offence against the section is a misdemeanour only and not a felony all point to this conclusion.
We think it worth while, in view of the prevalence of this class of offence and of the closely allied one commonly known as money doubling, to place on record our view as to the distinction to be drawn between the two. The latter class of case will in our opinion be usually properly dealt with as false pretences contrary to section 419 of the Code, the difference between that offence and larceny by trick being that in the former the owner's intention is to part with both the right of property and the possession, whereas in the latter only the possession is parted with. The distinction may well be a fine one and must depend on the facts found in each particular case, but it loses much of its importance in view of the provisions of section 59, subsections 2 and 3, of the Criminal Procedure Ordinance in accordance with which a person charged with stealing may be convicted of false pretences and vice versa.
Apart from the point dealt with above, which was raised by the Acting Solicitor-General himself, there is no substance in these appeals and they are dismissed.