Vasquez v Palacio

• Jurisdiction: Belize
• Court: Court of Appeal (Belize)
• Judge: The Hon. D.E.G. Malone
• Judgment Date: 11 May 1977
• Neutral Citation: BZ 1977 CA 7
• Docket Number: Criminal Appeal No. 4 of 1977
• Date: 11 May 1977

Supreme Court

Malone, C.J.

Criminal Appeal No. 4 of 1977

Vasquez

and

Palacio

Appearances:

Mr. D.O. Barrow for the appellant.

Mr. P. Zuniga for the respondent.

Criminal Law - Appeal against conviction and sentence — Housebreaking and aggravated theft

Criminal Law - Housebreaking

Facts: Grounds of appeal based on finding of facts and error in law — Whether finding of facts by magistrate reasonably justifiable — Finding by magistrate that one witness against appellant was an accomplice — Whether the evidence given by the accomplice against the accused was confirmed in a material particular by some fact or circumstance which implicated the accused in the commission of the crime — Whether a sentence of six months imprisonment for each offence was too severe in the case of a first offender

Facts: Appellant had right to enter house at any time by making use of the key — Appellant used key to enter to remove a refrigerator owned by a third party — Appellant convicted of charge of housebreaking — Whether appellant rightly charged of crime of housebreaking — Whether entry of appellant with use of key in exercise of his right to enter could properly be termed an unlawful breaking

Held: Appeal Dismissed — Convictions and sentences affirmed.

Held: appellant entered the building for the purpose of executing a felony, therefore entering it unlawfully — Appeal dismissed — Conviction affirmed.

1 Before The Hon. D.E.G. Malone, Chief Justice

2 The appellant was convicted of housebreaking and aggravated theft and sentenced to six months for each offence. The sentences to run consecutively. His appeal is against both conviction and sentence and his grounds of appeal are that:

• “(1) The decision was unreasonable.

• (2) The decision was erroneous in point of law in as much as the learned magistrate failed to appreciate the nature of the evidence necessary in the circumstances to provide corroboration.

• (3) The sentence was unduly severe.”

3 The appellant was employed as a master carpenter by the Public Works Department and at the time when these offences are alleged to have been committed was in charge of a gang of P.W.D. workers engaged in carrying out repairs to a house owned by the Government in Newtown Barracks, Belize City. The key to the house was given to him by Mr. Pitzold, a stores clerk of the Public Works Department, and it is the evidence of Mr. Roy Bailey, the clerk of works of the Public Works Department that the appellant occupied a position of trust and was allowed to keep the key to the house at the end of the working day. Apart from making use of the key to open and close the building during working hours, he could, after working hours, open up the building to remove, for example, an article which had been left in the building by oversight. If the evidence of Mr. Charles Savery is accepted, the housebreaking was effected by the appellant making use of the key to enter the house after working hours when with Mr. Savery's assistance he removed a refrigerator, the property of the Government of Belize and valued at $325.00 Belize Currency. On the ground that the appellant had the right to enter the house at any time by making use of the key, counsel for the appellant submitted that the decision of the learned magistrate that the appellant was guilty of housebreaking was unreasonable as to constitute that offence there must be an unlawful breaking. I cannot accept that submission. If a person is given a key by another to enter that other's building for certain lawful purposes but uses that key to enter the building for the unlawful purpose of executing a felony, then his entry is, in the words of section 205 of the Criminal Code, Chapter 21, “otherwise than ……. by the consent of some other person able to give such consent for the purposes for which he enters …….” as the execution of a felony is not a purpose to which another is able to consent. Therefore the person entering the building for the purpose of executing a felony enters it unlawfully. That disposes of the first ground of appeal, which in argument was limited to the offence...