Rex v Davies

• Jurisdiction: South Africa
• Judge: Solomon CJ, Curlewis JA and Stratford JA
• Judgment Date: 17 October 1927
• Hearing Date: 15 September 1927
• Court: Appellate Division

Stratford, J.A.:

The first question reserved is the following: 1. "Whereas the charge and the alternative charge are simply variants of the same crimen falsi, the facts alleged in the charge and the alternative charge are inconsistent, and therefore the indictment was embarrassing and the accused was prejudiced in not knowing before plea what set of facts the Crown relied upon."

In the first count the accused is charged with fraud, in the alternative count he is charged with theft by means of false pretences. It is said in effect, that the alternative is also one of

Stratford, J.A.

fraud. As a general proposition it clearly cannot be said that the crime of fraud and that by means of false pretences are identical. A moment's reflection will show the fallacy of that proposition. Though it is true that in all cases where the latter crime is committed there are present all the elements constituting the crime of fraud, the converse is certainly not true. The essential elements of the crimen falsi are a wilful perversion of the truth made with the intent to defraud and to the actual or potential prejudice of another. If the prejudice is actual and consists in the deprivation of another of his ownership in property capable of being stolen, and further if the accused converts that property to his own use, in such a case only is the crime also one of theft by means of false pretences. If the prejudice is "potential" theft is not committed. So also if the prejudice does not take the form of depriving another of his ownership in something capable of being stolen. Thus though it is true to say that where theft by means of false pretences is proved fraud is also proved, the converse is obviously untrue. It is not true therefore to say the "charge and the alternative charge are simply variants of the same crimen falsi." But the question reserved continues, "the facts alleged in the charge are inconsistent and therefore the indictment was embarrassing and accused was prejudiced in not knowing before plea what set of facts the Crown relied upon." The record shows that objection in the form of this question reserved was taken to the indictment before plea. It is clear that the alternative count is not based upon the same facts relied upon in the first count. In the alternative there is the allegation of conversion by the accused of the purchase moneys also the allegation that the shares were represented to be of the marketable value of one pound. Both of these are absent from the first count. Also in the first count there is the alleged representation that More was the authorised representative, of the Motor Fuels Corporation. This is not in the other count. Thus these counts should not have been framed in the alternative. See Rex v Friedman (1921 T.P.D. 309) and Rex v Motala (1927 AD 121). But though framed in the alternative there were truly two independent counts. In Rex v Motala INNES, C.J., said: "So that the second count although called an alternative count, is not really one; it is a separate and independent one. That being so the accused could have called on the Crown to elect to proceed on the one count or the other" and he quoted

Stratford, J.A.

Rex v Friedman. In that case CURLEWIS, J., came to the conclusion that though framed in the alternative there were two distinct counts and proceeded: "So that it seems to me the exception is well founded, and that the Crown should elect on which charge to proceed." Now though the language used in both these cases seems at first sight to express the view that whenever there are in an indictment, two independent counts the Crown can be called upon to elect, a careful perusal of the judgment in Rex v Friedman (relied upon in Rex v Motala) convinces me that no such general proposition was intended to be enunciated. When, as in this case, two counts are wrongly framed in the alternative the Court, if requested, will declare the true position, namely, that the indictment must be read as if two independent crimes had been charged. When that position has been made clear the...