JUDGMENT Cunliffe, J. - This is a somewhat curious case. It is an appeal by an accused person who was convicted by a Judge, sitting with assessors, of an offence under the Arms Act. He was actually convicted under sec. 19-A which is the section dealing with enhanced sentence, but the substantive offence which he is said to have committed is one under sec. 19 (f) which deals with the criminal possession and control of fire-arms. In this case there was a revolver and a number of cartridges. The learned Judge disagreed with the opinion of the assessors with whom he was sitting and delivered a judgment in which he found the accused guilty. An extra-ordinary feature of the case is that be-fore this had taken place, the same accused had been tried by the same Judge and the same assessors sitting as jury-men and acquitted of a charge of dis-honestly receiving the same articles under sec. 411, I. P. C. When I say before he was found guilty, in point of f act I believe that the procedure is, as far as the evidence is concerned, to have only one set of evidence and it is to be noted that the learned Judge in the charge that he made to his jurymen, who had not metamorphosed themselves yet into assessors but were trying the offence of theft, does also deal with the Arms Act offence. The Crown did not appeal against the acquittal under the thieving charges. The accused is not represented here. All we have here is a statement of his from jail and we only had the benefit of hearing the learned Deputy Legal Remembrancer. 2. I have read the charge to the jury-men on the summing up on the theft charge and also the judgment of the learned Judge under the Arms Act charge which, I notice, the learned Judge does not call a judgment but heads it " finding and sentence." I may say at once that this combined system of trial which may be recognised by the Criminal Procedure in this country seems to me to be a most undesirable one. It is almost Gilbertian that you should have a set of men acting as jury at one moment and assessors at another. It is almost Gilbertian that you should have a set of men acting as jury at one moment and assessors at another. It is, of course, well-known that the findings of a jury and the findings or opinions of assessors have different values in law. It is also correct, I think, to say that as far as an appeal is concerned, the effect of a charge to a jury is quite different to the effect of a judgment or finding of a Judge sitting with assessors. The jury seem to have thought in this case that it was a concocted one and they came to the conclusion in spite of what seems to me a very determined attempt on the part of the learned Judge to make them hold a different opinion. It often happens that if a Judge displays to a jury a resolution to present the evidence before them in his summing up very much in favour of the prosecution, as the Judge has in my view here, that the effect which he desires is completely defeated and the jury, through some unconscious or subconscious feeling in their minds, come down on the side of the defence. They are not asked to give reasons why they do so although they sometimes faintly indicate what their state of mind is by doing what these jurymen did, which was to say, benefit of the doubt--not guilty. 3. The facts of this case are that the Appellant was a servant, a very under-paid servant of a Sub-Inspector of police, and one day it was discovered that a revolver and cartridges had been stolen out of a locked trunk belonging to the Sub-Inspector. Information of the robbery was given by the Appellant here.. the servant, to another Sub-Inspector. Subsequently in the presence of the two Sub-Inspectors, one of them being the owner of the revolver and cartridges, and others, the Appellant who appears to have been the only servant of the house went out into the garden and close by the kitchen wall he dug away the ground under some leaves and there the revolver and cartridges were pointed out. He says in his memorandum of appeal that he has placed before the Court quite plainly that he was told by the police officers to do what he did with regard to the discovery of the revolver and the box containing the cartridges and he also alleges that he was not paid his wages properly, and objected to that and generally suggests that this is a concocted case. In the judgment which the learned Judge passed with regard to the Arms Act charge, he comes to the conclusion that the Appellant was guilty, because he had the revolver and cartridges in his possession and control. 4. During the course of the judgment this passage occurs: Even if any other person kept the articles concealed under the ground within the enclosure of the house in charge of the accused to the knowledge of the accused, it must be held that under the particular circumstances the accused exercised an act of possession or exercised control over the articles which were thus kept concealed. 5. To my mind, quite apart from the theory which the jury certainly must have held that this was a concocted case, such a line of reasoning is a specious one. I do not see why because a man might happen to know that there was illegally concealed in his master's garden a revolver and cartridges, that the revolver and cartridges should necessarily be in his possession or control. And it always was the prosecution case, as I understand it, that this theft in which the Appellant was involved was carried out with the help of some one else. That theory was based upon the fact that certain foot-prints were discovered on the Box that was broken open or close to the box which were proved not to be the foot-prints of the Appellant. 6. In my considered opinion, this charge after the acquittal by the jury of the Appellant for theft ought never to have been persisted in at all. 6. In my considered opinion, this charge after the acquittal by the jury of the Appellant for theft ought never to have been persisted in at all. It seems to me that it is acting in an unfair manner towards an accused person when he is once acquitted by a jury properly charged by a Judge, that he then should have to be further loaded with a judgment opposed to the verdict of the jury delivered by the Judge who has been unsuccessful, as I think, in persuading the jury and a judgment in which the jury in their capacity as assessors also refused to agree with him. It may be legal according to the Criminal Procedure but in my opinion, I repeat, that it is not an equitable form of process and I very much hope that the prosecuting authorities in the district would not be encouraged to pursue this form of double prosecution to make things more difficult for the ends of justice. 7. For all these reasons, I propose to allow this appeal. We set aside the conviction and sentence passed upon the Appellant and direct that he be set at liberty forthwith. Henderson, J. 8. I agree. This case is a very good example of the inconvenience, if not the absurdity, of a procedure by which the same simple facts are put before a jury on one charge and assessors on another. My learned brother has said what exactly the prosecution case is, and bearing that case in mind, it is inevitably ridiculous that on that case the present Appellant should have been acquitted with regard to the charge of theft and convicted of an offence under the Arms Act. One of these decisions must be transparently wrong. 9. The assessors were unanimously of the opinion that the charge has not been made out and in my opinion they took a very sensible view of the evidence. The basis of the conviction is extremely slender and depends on whether one is prepared to accept the police story with regard to the finding of the revolver in the garden of the Sub-Inspector. If one is not prepared to accept that story as completely bona fide, the present conviction must fail. 10. Now, the story told about the way in which the discovery was made. appears to me to be highly suspicious. If one is not prepared to accept that story as completely bona fide, the present conviction must fail. 10. Now, the story told about the way in which the discovery was made. appears to me to be highly suspicious. The prosecution have got to account for the con-duct of the Appellant in showing where the revolver was buried. The explanation given is that it was due to a suspicion aroused in the mind of the Sub-Inspector himself and, therefore, there can be no question that some sort of pressure was brought to bear upon the Appellant. The explanation given by the prosecution for the suspicion is that the Appellant was morose and disinclined to take his food. Why he should be morose and disinclined to take his food, if he had been successful in the crime, I do not pretend to know. Nor do I pretend to know why this con-duct on his part should have made the Sub-Inspector suspect that he had committed the theft. I should have thought that he would have suspected him to be ill and sent him to the dispensary for medical examination. In my opinion, this explanation of the prosecution is extremely suspicious. 11. Then, in the second place, I do not quite follow the reasoning of the learned Judge in dealing with this charge when he says that this weapon is one of the articles which were stolen by the Appellant in the course of the burglary. The stolen property is supposed to consist of this revolver and cartridges and cash. Now I can easily imagine that the Appellant might have taken away the cash; but I cannot imagine what object he might have in burying the revolver in the garden. It certainly does not fit in with the theory that he committed the burglary. Finally, I entirely agree with my learned brother that this slender evidence certainly does not amount to proof of the commission of an offence under sec. 19 () of the Arms Act. After all, the only legitimate inference from the evidence is that the Appellant knew where the revolver was. The learned Judge himself felt this difficulty. He says: I agree, however, that these facts by themselves do not necessarily amount to an act on the part of the accused of having the revolver in his possession or under his control. After all, the only legitimate inference from the evidence is that the Appellant knew where the revolver was. The learned Judge himself felt this difficulty. He says: I agree, however, that these facts by themselves do not necessarily amount to an act on the part of the accused of having the revolver in his possession or under his control. It is unfortunate that the learned Judge did not stop there and agree with the opinion of the assessors. In-stead of doing that, he goes on to dis-cuss certain other features which have nothing whatever to do with this particular charge. They are, however, matters which might be taken into consideration in determining whether the Appellant was himself the thief. Indeed the learned Deputy Legal Remembrancer actually asked us to approach this charge from the point of view that the Appellant was the thief. This, again, shows how objectionable the procedure followed in this case is. The only way in which the learned Judge has been able to support his own order is by really setting aside the verdict of the jury on the charge of theft. Speaking for myself, I absolutely decline to do anything of the sort. The finding is that the prosecution have failed to prove that the Appellant was the thief or that he was in possession of the revolver, knowing it to be stolen. When once that is established, it is transparent that the present charge must fail. I entirely agree with my learned brother's order that this appeal must be allowed.