KINGDON, C.J., NIGERIA, BUTLER LLOYD AND CAREY, JJ.
In this case the appellant, a second class Prison Warder, was convicted in the High Court before an Acting Assistant Judge sitting at Bamenda in the Cameroons of stealing twenty-nine old sheets of corrugated iron, the property of Government. We are satisfied that the conviction is wrong both technically and on the merits. The appellant frankly admits that he took and used for himself, quite openly, some old corrugated iron sheets which had formed part of an old shed which had been pulled down, these sheets being left apparently abandoned in situ whilst some described as the “good zinc” were taken to the prison yard. It was about four years before his action was queried, and then he was charged with stealing these and other sheets. He clearly established his innocence in regard to the other sheets, but was convicted in respect of these old ones. We think that he acted in good faith, entirely innocently in the bona fide and reasonable belief that the old sheets had been abandoned by the Government. In other words there was no mensrea and the conviction is bad for this reason on the merits. Apart from this the trial Judge misdirected himself in saying in his summing up “the test of stealing is; is the thing taken yours”. Under section 383 of the Criminal Code the test is “Did the accused fraudulently take something capable of being stolen?” It is well established law that “things of which the ownership has been abandoned are not capable of being stolen (See Archbold 29th edition page 535). If there is any ground for supposing that the accused may have believed the article found to have been abandoned by its owner, the jury must be carefully directed with regard to the matter since, if the jury find that belief as a fact, the accused is not
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guilty. (See Rex v. White 23 Cox 190). The trial Judge failed altogether to direct his attention to this question, viz. what the accused may have believed, and this failure amounted to a further misdirection.
For these reasons an appeal is allowed, the conviction is quashed, and it is directed that a judgment and verdict of acquittal be entered, further that the fine, if paid, be refunded to the appellant.