*Page 260*Page 261additional charge of unlawful possession was then proceeded with. The basis of that charge is that the accused person should be found in possession of goods reasonably suspected of having been stolen or otherwise unlawfully obtained and the whole basis of the charge is the reasonableness of the suspicion. In this case, what was suspected by the prosecution in the first instance was that the appellant's co-defendant had stolen the goods and that the appellant had received them knowing them to be stolen. That was the basis of the reasonable suspicion the subject matter of this additional charge.
By acquitting the co-defendant of the theft and by finding that the appellant had no case to answer regarding the charge of receiving the basis of the suspicion which the prosecution held in the first place, appeared to us to have been disposed of. What, then, could be the basis of any suspicion against the appellant? Merely this, that he was found in possession of certain pieces of iron roofing which may have at one time been the property of persons from whom the co- defendant was charged with stealing them, but there was nothing to indicate how long this property had been out of possession of its original owner or what circumstances aroused suspicion in regard to his possession of them.
Section 430, sub-section (1), of the Criminal Code is a very wide and far-reaching j section. It can only, if it is not to impose hardship on innocent persons, be applied with the greatest caution and in the circumstances in which we feel the legislature intended that it should be operated. We cannot think that it is the intention of the section that it q1ay be used as a substitute for a prosecution for larceny or receiving which has not been proved. It is based, as I have said, upon the existence at the time the charge is made against the defendant of reasonable grounds for suspecting that the goods were unlawfully obtained and only, I think, in the precise circumstances which may be deduced from the wording of the section can it be used. In the present case we do not think that the circumstances are such that the charge was properly brought.
The learned Magistrate was wrong in convicting under that section. The learned Judge was wrong in upholding the conviction. The appeal is therefore allowed, and a verdict of not guilty is entered in the Magistrate's Court. The appellant is discharged.
Appeal allowed.