JUDGMENT OF ARCHER J.
The appellant together with two others was charged with two counts, (1) conspiracy to commit a crime to wit: stealing and (2) stealing a skull of a human being from a grave of one deceased Ama Akowa. The three persons were charged jointly and appeared before the district magistrate grade I, sitting at Cape Coast on 23 January 1967. When the charges were read, the appellant pleaded guilty to the count of conspiracy. The two others pleaded not guilty to both counts. After the facts of the case had been narrated by the prosecuting officer, the trial magistrate wrote as follows:
"By court:
I am satisfied that the removal of a dead body or part of it which has been interred is a thing which has ownership vested in it, bearing in mind the set-up of our African society. Sentence: One day's imprisonment and a fine of ¢120.00 or six months' imprisonment with hard labour."
As the appellant pleaded guilty, the trial magistrate, after hearing the facts passed sentence., The appellant was not represented by counsel at the trial in the court below although the two other persons charged jointly with him were represented by counsel.
Section 324 (3) of the Criminal Procedure Code, 1960 (Act 30), provides: "No appeal shall be entertained against conviction by an accused person who has pleaded guilty and has been convicted on his plea." It would therefore follow that the appeal could not be entertained by the court. Nevertheless the grounds of appeal as filed made it necessary for this court to entertain the appeal. The grounds filed were:
"(1) The conviction cannot be supported having regard to the facts adduced before the court.
(2) Although the accused pleaded guilty to the charge, there was no criminal offence before the court to which the accused could have been called upon to plead.
(3) The sentence is harsh and excessive."
[p.285]
The real interesting legal point in the appeal was whether a human skull was capable of being stolen from a grave in which the corpse was buried. Learned counsel for the appellant referred to Archbold's Criminal Pleadings, Evidence and Practice (35th ed.), para. 1529 at p. 626 and argued that at common law, the dead body of a human being was not capable of being stolen. He argued further that once a dead body had been buried then it must be deemed to have been abandoned and it was therefore difficult to understand why the learned magistrate said that ownership was vested in the dead body in view of the set-u
