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Criminal procedure ” competent verdict ” charge of fraud ” theft not a competent verdict ” Criminal Procedure and Evidence Act [Chapter 9:07] ” s 223 ” cannot be used to return verdict of theft on charge of fraud
The appellant had been charged with fraud in respect of money entrusted to him. He was found not guilty of fraud because he had made no fraudulent misrepresentation but he may have committed theft by converting the money to his own use.
On appeal:
Held, that s 223 of the Criminal Procedure and Evidence Act only allows the accused to be convicted of another lesser offence where the commission of the offence contained in the charge includes the commission of the lesser offence. The section can thus only be invoked when the major offence which has not been proved includes a minor offence which has been proved. The offence that is to be substituted for the offence charged must be a minor offence. Theft is not a minor offence in comparison with fraud and thus this charge cannot be substituted for fraud.
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