CRIMINAL LAW-LECTURE 7

PARTIES TO A CRIME

1. Principals and accessories

Section 21 of the Penal Code Provides as follows:

“When an offence is committed, each of the following persons

is deemed to have taken part in committing the offence and to
be guilty of the offence, and may be charged with actually
committing it, that is to say:

(a) every person who actually does the act or makes the
omission which constitutes the offence;

(b) every person who does or omits to do any act for the
purpose of enabling or aiding another person to commit the
offence;

(c) every person who aids or abets another person in

committing the offence;

(d) any person who counsels or procures any other person to

commit the offence.

(2) In the case of paragraph (d) of subsection (1), such person

may be charged either with committing the offence or with
counselling or procuring its commission. A conviction of
counselling or procuring the commission of an offence entails
the same consequences in all respects as a conviction of
committing the offence. Any person who procures another to
do or omit to do any act of such a nature that, if he had
himself done the act or made the omission, the act or omission
would have constituted an offence on his part, is guilty of an
offence of the same kind and is liable to the same punishment,
as if he had himself done the act or made the omission; and he
may be charged with doing the act or making the omission.”

Cases:

Mwana-Mpande, Chileshe and Munkonge V R (No. 1) (1960)

The three appellants were convicted of conspiring together to

commit a felony, namely arson, and appealed. A document

entitled an “Agenda” was found in which the appellants gave

instructions as to the undertaking of an arson campaign.

They argued that the only evidence adduced by the

prosecution if it pointed to conspiracy at all, pointed to a

conspiracy to counsel or procure other persons to commit the

offence of arson and not, as charged, to a conspiracy to

commit the substantive offence of arson.

Held:

To organize a crime is going to a great deal further than merely

to counsel or procure its commission….the wording of the

agenda shows that the compilers of it were going to do rather

more than organize it: they were going to supply the very

incendiary materials with which it was to be committed. They

were also issuing instructions as to how those materials

 should be used. The vital test is surely to see whether, if the

design were put into effect as planned, the designers could

have been properly indicated and convicted for arson

notwithstanding that they were not present at the actual

burning, and in my view they could. Appeal against conviction

dismissed.

2. Nyalungwe V The People (1976)

The appellant was charged with four counts of making a

document without authority contrary to S. 356(a) of the Penal

Code. He was convicted on all counts. The evidence on the

other hand quite clearly established that the signature in each

case was intended to pass for the actual signature of the

Minister; the handwriting expert was at pains to demonstrate

how he had established that the signatures were not in fact

those of the Minister in question, and the whole of his

evidence was on the basis that the documents were forgeries.

S.356 does not relate to forgery; it deals with making a

document without the authority of the person who should

have authorized it. The essence of the offence is the want of

authority, not the simulation of someone else’s signature; and

an offence, using the facts of the present case as an

illustration, would have been committed if the letters in

question had been signed “C.K.M. Nyalungwe for G.Zulu,

Minister of Home Affairs,” when the minister had not

authorized the signing of the letter and the appellant had had

no authority to sign it on his behalf without authorization. The

appellant should have been charged under the appropriate

forgery section. The Court went on to say as follows:

“….an accused must always be informed of the true nature

of the case he is required to meet, and it cannot seriously

be argued that where the particulars of the charge allege

that the accused signed a document, this is the same as

saying that he procured another person to sign the

document...” In the present case, the accused was convicted

of an offence he was never charged with….The conduct of the

defence might have been different if the particulars had been

amended to allege counselling or procuring, and it is

impossible to hold that there has been no prejudice to the

appellant. Appeal allowed.

 Common Intention by Joint Offenders

Section 22 of the Penal Code provides as follows:

“When two or more persons form a common intention to

prosecute an unlawful purpose in conjunction with one
another, and in the prosecution of such purpose an offence is
committed of such a nature that its commission was a probable
consequence of the prosecution of such purpose, each of them
is deemed to have committed the offence.”

Cases:

Mwape V The People (1976)

The appellant, together with other persons, broke into the ZCBC

shop in Mporokoso, blew up the safe, and obtained a large amount

of money contained therein together with other goods. It was alleged

that they attacked the security guard, stabbing him in the leg and

generally using violence on him in order to execute their objective.

The appellant was convicted of aggravated robbery from the

confession he gave which was accepted by the Court. The question

before Court was whether or not the appellant was guilty of the

crime or some other offence since he claimed to have acted as a

driver and did not assault the night watchman but remained in the

car.
Silungwe, C.J., delivered the judgment of the Court.

“That the offence of aggravated robbery was committed in this case

is incontrovertible. There can be no doubt whatever that the

appellant together with other persons unknown plotted to raid and

did in fact raid the ZCBC shop at Mporokoso and stole from it a

large quantity of property. The question to be determined is whether

the appellant and his associates had formed a common intention to

commit the offence of aggravated robbery. In law a participation

which is the result of a concerted design to commit a special offence

is sufficient to render the participant a principal.

As can be seen from the appellant’s confession it is quite clear that

the expedition was to break into the ZCBC shop and to steal

property therefrom. That was obviously the common purpose to

which the appellant was a party. The offence of violence against the

night watchman which was committed by the appellant’s

confederates was not a probable consequence of the prosecution of

the common purpose….the appellant had no common intent to

harm the night-watchman and consequently he cannot be guilty of

aggravated robbery….Conviction and sentence set aside.

Haonga and Others V The People (1976)

The appellants were convicted of the murder of a farmer, who was

shot and killed during an armed robbery carried out by five men.

The appellants were identified by one witness as the occupants of a

car which had been involved in an accident some three hours before

Counselling another to commit an offence

Section 23 of the Penal Code provides as follows:

“23. When a person counsels another to commit an offence,

and an offence is actually committed after such counsel by the
person to whom it is given, it is immaterial whether the
offence actually committed is the same as that counselled or a
different one, or whether the offence is committed in the way
counselled or in a different way, provided in either case that
the facts constituting the offence actually committed are a
probable consequence of carrying out the counsel. In either
case the person who gave the counsel is deemed to have
counselled the other person to commit the offence actually
committed by him.”