1921. Present : Shaw J.

SILVA v. SIMON.

170-P. C. Balapitiya, 48,956.

Penal Code, s. 449-Being armed with dangerous weapon with intent to commit an unlawful act-Charge.

When a person is charged under section 449 of the Penal Code with being armed with a dangerous weapon with intent to commit an unlawful act, the charge should allege what unlawful act he was intending to commit. The Magistrate should also find when he convicts what unlawful act the accused was about to commit.

THE facts appear from the judgment.

Ameresekera, for second accused, appellant.-Section 449, as amended by section 2 of Ordinance No. 12 of 1906, provides for the punishment of two offences. The appellant is charged with being armed with a dangerous weapon, to wit, a sword, with intent to commit an unlawful act.

In the first place, the charge is defective, in that it does not disclose what particular unlawful act the appellant intended to commit. In the second place, the burden of establishing the appellant's special intention to use the sword for the purpose of committing a particular unlawful act is on the prosecution. That burden has not been discharged, and the M