Criminal Law is an institutional designed to protect society against certain substantial harm by imposing sanctions on the offenders. In other words, it states what one ought to do or else they suffer. Inevitably one is arrested, tried and punished in case he is found guilty of breach of any criminal law. A crime is a legal wrong to the public consequence of which is that the offender if detected and it is decided to prosecute him, the prosecution is done by the state and if the offender is found guilty, he/she is liable to be punished. A crime is an act or omission that is punishable by the law.
A crime is a public wrong. This is as defined by Smith & Hogan. Therefore every member of the public is supposed to bring a criminal for prosecution whether or not he/she has suffered a special harm over and above any other member of the public. Article 250 (4)1 provides that in the title of any criminal proceedings, the prosecution shall be designated by the word "Uganda". A criminal is a person who has committed such a legally forbidden act or omission. Article 26 (1) states that, "Every person has a right to own property either individually or in association with others.
" Article 250 (1) states: "Where a person has a claim of right against the Government that claim may be enforced as a right by proceedings taken against the Government for that purpose. " And section 4 of the same article states : "In the title of any criminal proceedings, the prosecution shall be designated by the word 'Uganda'. " In Criminal Law it is therefore the Sate against the citizen. The Constitution provides that the State protects the rights of a citizen including ownership of property. Theft is defined under section 2452.
A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person other than the general or special owner thereof anything capable of being stolen, is said to steal that thing. Section 244 provides for things capable of being stolen. These include any imamate thing which is the property of any person and which is movable, tame animals, wild animals which are property of any person. A special owner is the person who has any charge or lien upon the thing in question.
When the thing converted has been lost by the owner and found by the person who converts it, the conversion is not deemed to be fraudulent if at the time of the conversion the person taking does not know who is the owner, and believes on reasonable grounds that the owner cannot be discovered. It is specifically provided that a person shall not be deemed to take a thing unless he moves the thing or causes it to be moved. Theft in the Penal Code is not wholly identical with larceny in English Law, and where there are divergences, English authorities should be treated with caution.
Theft may also be known as stealing. The essence of larceny at Common Law was taking without the consent of the possessor. This is also a trespass in Civil Law. The taker only obtained unlawful possession. Where a thing was converted, the convertor did not obtain lawful possession, as he acquired possession by delivery of the thing to him with consent of the previous possessor. Conversion is a civil wrong, but it was not larceny at Common Law, but a separate statutory crime.
Under the Penal Code, however, conversion, as well as taking, amounts to theft3. In each case the taking or the conversion must be fraudulent and the thing stolen must be legally capable of being stolen if it is to be theft. The mens rea for theft may be conveniently termed the "animus furandi. " Alternatively, it may be said that the accused acted "fraudulently. " In the great majority of case, the prosecution will seek to prove that the accused took or converted the thing with the intent or permanently depriving the owner of it.
The intent to temporarily deprive the owner of the thing is insufficient. Thus, it is not theft to take a motor car without the owner's permission, if the driver intends to return it or abandon it in a place where it can be traced by the owner. But the driver is guilty of conversion of a vehicle not amounting to theft, and of taking and driving away a motor vehicle without the owner's consent. Where a person unlawfully takes a thing from its owner and then tries to sell it back to the owner, that is theft.
It is not theft unless the taker so appropriates the thing as wholly to repudiate the owner's interest in it. In R. v. Holloway4 , the accused was employed to dress skins of leather by a tanner. The workmen were paid on piece rates for work done. The accused took some of the tanner's skins from a store with intention of getting paid for the work on the skins as his owner. In this way the skins would be returned to the owner. It was held that this was not larceny as there was no intention to deprive the owner wholly of his property.
On another charge, he might have been convicted of an attempt to obtain money by false pretence. An honest claim of right is a defence to any charge relating to property. A person has a claim of right where he honestly asserts what he believes to be a lawful claim, even though it is unfounded in law or fact5. According to Glanville Williams: "The cases go very far in saying that any belief in a legal right to take the thing, however absurd and even though the matter involves questions of law, prevents the taking from being larceny.
It may be hard for a lawyer to credit the abysmal ignorance of law that may be involved in a genuine claim of right but when doubt arises the benefit of it must be given to the accused. " Thus, the courts have held that an honest claim of right may exist even where the accused takes by force against the will of the owner,6 or where he obtains possession by a false pretence or a trick7, or where he demands money with menaces. 8 In Oyat v.
Uganda9 , it was said that when the accused retained a bull and kept it until the owner paid compensation, he was entitled to do so because his claim was honest and based on reasonable grounds. Section 252 of the PCA provides for the general punishment of theft and a person convicted is liable, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for five years.