Blackall, P. The appellant was charged with stealing 60 bags of cement and also for omitting to enter the receipt of 60 bags of cement with intent to facilitate the crime of stealing.
At the close of the case for the prosecution the trial Court accepted the submission of counsel for the defence that there was no evidence of stealing, and the appellant was discharged on that count. He was, however, convicted on the other count. It is contended that his acquittal on the charge of stealing automatically negatives the finding of guilty on the charge of fraudulent false accounting. In support of this the case of Rex v. Peters Udo Akpabio (1) was cited. We do not think that case goes further than to say that in the particular circumstances an acquittal on the one count negatived the finding of guilty on the other. The Court could not have intended to lay down as a universal proposition that an acquittal on a charge of stealing necessarily involves an acquittal on a charge of fraudulent false accounting, for it is a matter of legal history that the offence of fraudulent false accounting was enacted because of the difficulties which occur in bringing home actual stealing to clerks who embark on a course of fraud by falsifying their employers' books.
It was further submitted that there was no evidence of intent. As to this, intention is not capable of positive proof: it can only be implied from overt acts. In the present case the learned Judge having heard the witnesses came*Page 133to the conclusion that these omissions to account were not accidental or due to carelessness, but were done with the intention of facilitating the offence of stealing.
In the view of this Court there was sufficient evidence for the judge to arrive at such a finding and the appeal must therefore be dismissed.
Appeal dismissed.