Court of Appeal
Criminal Appeal No. 5 of 1979
20th July, 1979
ALATAIR BLAIR-KERR, P.
CLIFFORD INNIS, J.A.
W. A. H. DUFFUS, J.A.

Criminal Appeal against convictions for Housebreaking and Aggravated Theft - Recent possession - Appellant jointly charged with another accused person - Doctrine of common purpose - Effect of doctrine in cases of Housebreaking and Aggravated Theft.

J U D G M E N T

The Appellant Lopez was convicted before the Supreme Court of Belize on 9th Apri1, 1979, of Housebreaking and Aggravated Theft and on 11th April, 1979, was sentenced to 3 years imprisonment with hard labour for the Housebreaking and 2 years imprisonment with hard labour for the Aggravated Theft, the sentences to run concurrently and to commence at the expiration of the sentence he was already serving. Lopez now appeals against his convictions and seeks leave to appeal against his sentences. He had been charged jointly with one Nicholas Baptist with the commission of the two above-mentioned crimes, and in the alternative with Receiving. Baptist was also convicted of Housebreaking and Aggravated Theft and has appealed, but on the application of Appellant Lopez, the Appeals were heard separately.

It was undisputed that between 10 and 11 p.m. on 25th June, 1978, one Montique Nelson found his dwelling?house on Albert Street, Belize City, broken open and a number of articles belonging to him missing. Among them were one Electronic Echo Chamber (Amplifier), one brown handbag, one Electric Adding Machine, five 8?track Cassettes and an electric iron. His dwelling-house was the upper flat of a two?storey building, the lower flat of which was occupied by a store called "Pamela".

The case against Appellant Lopez rested on the doctrine of recent possession.

The evidence against Appellant was in two parts. First, that at about 11 p.m. on the very day on which Mr. Nelson discovered his articles missing, Appellant was in the company of Nicholas Baptist, his co?Accused at the China Inn Restaurant when the latter sold to the Manager, Robert Aldana, 5 8?track tapes for $15.00. Baptist took them from a bag which also contained an electric iron. Three of these tapes were later identified as the property of Montique Nelson, the other two having been thrown away as useless.

The other part of the evidence against Lopez placed him towards the and of June at the house of one Andy Alvarez, an old school friend, at mile 11 on the Northern Highway, where he spent the night. He, Lopez, then had a brown bag which contained an adding machine and an amplifier. Next day he, Appellant, left the brown bag and the adding machine with Alvarez and went to Orange Walk with the amplifier. He was trying to sell it at the liquor shop of Gilroy Dawson, when the Police arrived. He denied that the amplifier was his. The amplifier, the brown bag and the adding machine were all identified by Montique Nelson as some of the articles missing from his dwelling-house.

In an admittedly voluntary statement given to the Police and written by himself, Lopez said that on the evening of Sunday 25th June, 1978, he was in company with Nicholas Baptist, a very good friend of his. At Baptist's request, he went to China Inn with Baptist who said he had some screwdrivers, an iron and four 8 ?track Cassettes for sale. There Baptist spoke with the Cashier, one "Berto", about the items for sale and "Berto" bought the Cassettes for $15.00. He and Baptist then left and walked on Albert Street. At South Street Baptist left him, and then re?appeared with a brown bag. He opened it and in it were an amplifier and an adding machine. He said he wanted to sell these items and Lopez offered to take them to Orange Walk the next day. Baptist agreed and on the 26th he, Lopez, left for Orange Walk with the items, but broke his journey to spend that night with a friend. On the 27th he went he went to Orange Walk taking with him only the amplifier, and leaving the brown bag and adding machine with his friend. At Orange Walk he tried to sell the amplifier but the Police came upon him.

In his defence, Lopez gave sworn testimony. In it, he repeated in the main the story he had given in his statement to the Police, but made certain changes of position, some of which were plainly intended to put more distance between himself and Baptist. He now said he didn't know Baptist, whom he had previously described as a very good friend, too well. At the China Inn he put himself about 18 feet away from where Baptist and the Cashier "Berto" were speaking and said he didn't know what they spoke about, but saw Baptist hand over 5 Cassettes to the Cashier and "Berto" give him $15.00. He now for the first time introduced a reason given by Baptist for wanting to sell the articles which he had. This was that they belonged to Baptist's Aunt who wanted to sell them to make her passage money to go to the United States.

The learned trial Judge correctly advised the jury that the Appellant and his co?Accused were charged jointly and if they found that the two were acting with a common design, it wouldn't matter which did the breaking or "which stole what".

He also correctly advised the jury that they might find the witnesses Robert Aldana and Andy Alvarez accomplices by virtue of being receivers of stolen goods. If so, corroboration of their testimony was required, and that the evidence of the one was not corroboration of the evidence of the other. We are satisfied that ample corroboration of their evidence existed both in the statement of the Appellant Lopez to the Police and in his sworn testimony before the Court.

The trial Judge further correctly advised the Jury that the Accused having pleaded not guilty, if they regarded his statement as an admission of guilt, he was not to be convicted on such admission alone without confirmatory evidence. We are satisfied that there was sufficient confirmatory evidence both in the testimony of the possible accomplices and otherwise.

The trial Judge also correctly directed the Jury on the doctrine of recent possession. He told them, inter alia, that if they accepted the Accused's explanation as to how he came to be in possession of the stolen goods or it left them with a reasonable doubt as to his guilt, they ought not to say that the case had been proved to their satisfaction on that evidence alone. On the other hand, if they rejected his explanation, the possession by him of some of the property recently stolen would be some evidence that he either stole it or received it knowing it to have been stolen. He also correctly added that if they found that the Accused had stolen the goods and also that the goods had been locked into Mr. Nelson's dwelling?house and so could only be stolen by someone who broke the dwelling?house, the possession of the stolen goods would also be evidence that the person who had them in his possession broke the dwelling?house to steal them.

It is clear from the verdict of the Jury that they rejected Appellant's explanation of how the stolen goods came into his possession. In these circumstances, it is not surprising that they found Appellant guilty of Housebreaking and Aggravated Theft.

In our view, there is no substance in Appellant's contention that the "decision was biased and there was possible misdirection". We see no reason to interfere with either of his convictions. His appeal against his convictions is accordingly dismissed.

So far as his sentences are concerned, Appellant Lopez has a very bad record and we see no reason to interfere with the sentences imposed by the lower Court, namely three years imprisonment with hard labour and two years imprisonment with hard labour to run concurrently. It was not clear from the Record, however, that the Trial Judge had ordered that these sentences should commence at the expiration of the sentence already being served by Appellant, as stated in the Commitment Warrant. We have therefore confirmed with the Trial Judge, through the Registrar, that he had so ordered, and see no reason to vary this order.

For the reasons we have given, the Appellant's application for leave to appeal against his sentences is refused.

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