Kent v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 25 January 1950 |
| Docket Number | No. 7. |
| Date | 25 January 1950 |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General. Lord Carmont. Lord Russell.
Review—Powers of High Court—Power to substitute new verdict—Conviction on indictment charging embezzlement—Evidence warranting conviction of theft but not of embezzlement—Whether in the circumstances appropriate to substitute verdict of theft—Criminal Appeal (Scotland) Act, 1926 (16 and 17 Geo. V, cap. 15), sec. 3 (2).
Procedure—Trial—Withdrawal of case from jury at close of Crown evidence—Competency.
The Criminal Appeal (Scotland) Act, 1926, sec. 3 (2), enacts:—"Where an appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court that the jury must have been satisfied of facts which proved him guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence. …"
An accused was charged on indictment with embezzling the proceeds of the sale of certain goods sold by him on the authority of his employers, who had rejected the goods as unsuitable, and of the firm which had consigned the goods. The Sheriff-substitute refused to withdraw the case from the jury at the close of the Crown evidence; and the jury found the accused guilty of the embezzlement. The evidence was insufficient to establish that the sale had been authorised either by the accused's employers or by the other firm; and the accused appealed against his conviction. At the hearing of the appeal Crown counsel contended that the jury must have been satisfied (1) that the goods did not belong to the accused, (2) that he had sold them, and (3) that he had failed to account for the price; and that, as these inferences were warranted by the evidence, the Court should substitute a verdict of theft for the verdict of embezzlement.
The Court refused the Crown's motion, holding that it was impossible to affirm that the jury were necessarily satisfied of facts warranting a verdict of theft; and conviction quashed.
Observed that in a criminal trial the presiding Judge cannot competently, without the consent of the Lord Advocate or his representative, direct the jury to return a verdict of not guilty on any part of the indictment until the evidence is complete and the speeches for the Crown and the defence have been concluded.
Andrew Buchanan Kent was charged in the Sheriff Court at Glasgow on an indictment at the instance of His Majesty's Advocate which set forth that "(1) being a buyer and office manager for the Danish Bacon Company, Limited, at 118 Queen Street, Glasgow, and Grews Fruit Products, Limited, Obins Street, Portadown, Co. Armagh, Northern Ireland, having on 17th January 1949 caused to be consigned on your instructions to the Danish Bacon Company, Limited, at Leith Walk, Edinburgh, 320 cartons (each containing 24 cans of a size known as 22½S) of apple puree at a total price of £512, and said apple puree having been received and rejected by said Edinburgh branch of your company as unsuitable on account of the size of containers, and you having been authorised by your said company...
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