Murray-Aynsely J:

This appeal raises two points - one as to the merits, the other as to a matter of procedure.

As regards the question of merits it is interesting to observe the history of the case. Apparently the Appellants were in the first instance charged with the theft of a barrel. When evidence was called it became evident that the identity of the barrel stolen with that found in possession of the Appellants was the crucial point of the case, and it became equally clear that on that point the evidence for the prosecution was inadequate. In the circumstances the charge was amended to one under s. 35(i) of Cap. 46 (Minor Offences) on which the Appellants were convicted. But it seems clear that in the case of an article in common use such as an oil drum which was the article concerned in this case possession is not a suspicious circumstance where there is no evidence that the article possessed is the one stolen. In other words this sub-section should not be resorted to help out where a charge of theft breaks down. There is a legitimate use for this sub-section, e.g., where a beggar is found with a gold watch and no charge of theft can be preferred because the owner can