Rex v Geshen and Miller Appellants

• Jurisdiction: South Africa
• Judge: Wessels CJ, Curlewis JA, Stratford JA, Beyers JA and De Villiers JA
• Judgment Date: 06 March 1933
• Citation: 1933 AD 137
• Hearing Date: 04 March 1933
• Court: Appellate Division

Wessels, C.J.:

In this case five persons, including the two appellants were charged with attempted housebreaking with intent to steal, the details of the indictment being as follows: "In that, upon or about the 7th November, 1932, and at or near Johannesburg the said Sam Geshen and the said Phillip Miller, both or one or other of them did wrongfully and unlawfully incite, instigate, command or procure the said Nicolaas Stephen Kruger the said Johannes Kruger and the said Stephanus Johannes Kruger, to break and enter the storeroom of W. F. Brittain, a merchant there carrying on business, with intent the goods there being to steal, and whereas the said Nicolaas Stephen Kruger, the said Johannes Kruger and the said Stephanus Johannes Kruger in consequence of the said inciting instigating, commanding or procuring did, all or one or more of them wrongfully and unlawfully attempt to break and enter the said storeroom with the intent aforesaid, the accused are, all or one or more of them, guilty of the crime of attempted housebreaking with intent to steal."

There was a certain Paulsen, one of the persons engaged, who turned King's evidence and at the trial related that he and all the accused had met together and had discussed the breaking in and stealing of fountain pens belonging to Brittain. Geshen and Miller were to take over the pens, which would be sold, by them and the proceeds divided amongst them all.

It is contended that there is no evidence to justify the conviction on the indictment as framed because the evidence of Paulsen was to the effect that the matter was already ripe before these two participants arrived on the scene and therefore there could not have been any inciting or instigation or commanding or procuring by them. The simple answer to this is that, if two or more person's

Wessels...