Present: Pereira J.

PERIS v. SILVA et al.

848 and 849-P. C, Colombo, 43, 145.

Conspiracy-Evidence-Statements made by one accused-Evidence Ordinance, s. 10-Misjoinder.

Where A and B were charged with attempting to extort money from C-held that the statements made by B to C implicating A, and disclosing a conspiracy on the part of A and B to commit extortion, were inadmissible as against A.

Section 10 of the Evidence Ordinance (No. 14 of 1895) applies when it is first established aliunde that there are reasonable grounds to believe that two or more persons have conspired together to commit an offence. The statements relied on cannot themselves be taken as evidence of the existence of such reasonable grounds. Such grounds must first be established in order to pave the way for the admission of the statements as evidence, and when so admitted they may be additional proof of the conspiracy.

The question of misjoinder of charges and of accused has to be looked at in the light of the case that the prosecution presented to the Court and endeavoured to establish. The mere fact that the prosecution failed to establish its case (that the accused were acting in conspiracy and that the acts were committed in the course of one transaction) to the satisfaction of the Court as regards some of the charges, or as regards any one of the accused, is not evidence either of misjoinder of charges or of accused parties.

THE first accused in this case was charged by the complainant with having committed theft of certain letters belonging to Mr. J. S. W. de Soysa (Penal Code, section 370), and further, with

having aided the second accused in attempting to extort from Mr. J. S, W. de Soysa a sum of money (Penal Code, sections 374 and 102) in respect of the return of the letters.

The second accused was charged under section 374 with attempting to commit extortion, and also under section 396 of the Penal Code. After trial the learned Magistrate found first accused guilty under sections 374 and 102, and the second accused under section 374. Each accused was sentenced to six months' rigorous imprisonment.

The learned Magistrate (E. B. Sueter, Esq. ) delivered the following judgment. -

Second Accused. - The case against the second accused is that he went to the house of Mr. Walter de Soysa (on October 22), who had the conversation reported in shorthand in the documents A and B. He said he came from Romeal Silva, the first accused, and he wanted money for the return of certain letters stolen from Mr. de Soysa and said to be with Romeal Silva. The threat used was that if the money asked were not paid the letters would be handed over to the other side. The second accused denies the correctness of the report of the interview ..... It appears to me the record of the interview is a true one........... It seems to me that the charge of attempted extortion is proved against him........ I find him guilty under section 374...... I acquit him of the charge under section 396.........

First Accused. -The charges against the first accused are that he stole some letters of Mr. de Soysa while he was his clerk, and recently abetted the second accused in demanding blackmail. The second charge may be taken first. The evidence is of statements made at the interview against him by second accused. These in themselves might not be sufficient, as there would be no guarantee that they were true. But there are certain circumstances pointing to the first accused acting with the second accused. There is the fact that second accused had nothing to do with Mr. de Soysa, while first accused was his clerk. Then there is the significant statement by Mr. de Soysa that Romeal's uncle was watching the gate on the day second accused came. I see this is confirmed by a mention in the transcript B, and I accept it as true. I therefore find the first accused guilty of abetting the second accused in his offence under section 374, as he instigate