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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(V8) 1 CLR 6
1908 January 29
(ASSIZE COURT OF LIMASSOL.)
[TYSER, C.J., BERTRAM, J., STUART, ACTING P.D.C., ATTA BEY AND OIKONOMIDES, JJ.]
REX
v.
MICHAEL HAJI NICOLA KOKINOFTA.
CRIMINAL PROCEDURE-CYPRUS COURTS OF JUSTICE ORDER IN COUNCIL, 1882, ART. 151-FILING OP INFORMATION IN ASSIZE COURT BY ORDER OF DISTRICT COURT.
CRIMINAL LAW-OTTOMAN PENAL CODE, ARTS, 222 AND 245-LARCENY-"LUGRI CAUSA."
The Defendant was charged before the Magistrate upon two charges: (1) larceny under Art. 222 of the Ottoman Penal Code, and (2) killing animals under Art. 245. The Magistrate dismissed the first charge and committed the prisoner to the District Court upon the second. The District Court, on hearing the evidence, made an order under Art. 151 of the Cyprus Courts of Justice Order in Council, 1882, directing that an information should be filed against the accused in the Assize Court on the first charge.
HELD: By the Assize Court, that the dismissal of the first charge by the Magistrate did not preclude the District Court from making the order.
It is not necessary to constitute the crime of larceny (sirqat) in Ottoman law that the thing taken should have been taken lucri causa. It is sufficient if it was taken with the intention of depriving the owner of the property.
The Defendant with two others broke into a stable at night and took out three mules, which they rode some distance from the stable and there slaughtered.
HELD (Oikonomides, J., dissenting): That the Defendant was guilty of larceny.
The Defendant in this case was charged before the Magistrate upon two charges, (1) larceny under Art. 222 of the Ottoman Penal Code, and (2) killing animals under Art. 245.
It appeared from the evidence that on the night of 27th November, 1907, the Defendant and two other men (one of whom pleaded guilty, and the other of whom gave evidence for the Crown), broke into the stable of one Perikli Oiconomides, and took out three mules, which they rode to a spot at some distance from the stable and there slaughtered.
The Magistrate, being of opinion that these facts did not disclose an offence amounting in law to larceny, dismissed the first charge and committed the prisoners for trial before the District Court on the second.
The District Court, having heard the evidence came to the conclusion that there was evidence that the accused had committed an.offence upon a conviction of which they would be liable to a more severe punishment than could be awarded to them upon a conviction of the offence for which they were being tried, and acting under Art. 151 of the Cyprus Courts of Justice Order in Council, 1882, ordered an information to be filed in the Assize Court for the larceny under Art.222.
Theodotou for the first Defendant raised the preliminary objection, that the Magistrate having dismissed the first charge the District Court had no power to direct that it should be again preferred before the Assize Court. The Court had consequently no jurisdiction to entertain the charge.
Bucknill, K.A., was not called on.
The Court decided that inasmuch as Art. 151 of the Order in Council was perfectly general in its terms, there was nothing- in the dismissal of the first charge by the Magistrate to preclude the District Court - from ordering an information to be filed in the Assize Court.
Theodotou, in addressing the Court on the evidence, submitted that, even assuming the facts alleged to be proved, the charge of larceny was not made out. To constitute larceny there must be the animus furandi at the time of the taking and it is essential to the animus furandi that the taking should be lucri causa, that is to say, that its object should be the obtaining of some material benefit for the taker. This is the principle of Roman law. It does not seem to have been embodied in the French Code. In English law there is only one case to the contrary R. v. Cabbage R. and R., 292, and in that case the judges were divided.
Bucknill, K.A. was not called on.
Judgment. CHIEF JUSTICE: The question we have to determine is whether in order to constitute the crime of sirqat in Turkish law it is necessary that the taking should be lucri causa. This is not essential to the crime of "vol" in French law and in interpreting the Ottoman Penal Code, which is very largely base& upon the French Penal Code, the principles of the French law are often a very useful guide.
The case of R. v. Cabbage shows that it is not essential to the crime of larceny in English law. Our colleague Atta Bey is of opinion that the term sirqat in Turkish law does not imply a taking lucri causa. We are all of opinion (with the exception of our colleague Oikonomides, J.) that it is not an essential element of the crime that the object of the person taking the thing in question should be to obtain some material benefit for himself. What is essential is that he should intend to deprive the owner of the property in it.
Sentence: Three years hard labour.