[1951] EACA 123

## APPELLATÉ CRIMINAL

## Before Sin HECTOR HEARNE, C. J., and BOURKE, J.

THE ATTORNEY GENERAL, Appellant (Original Prosecutor)

NGARU S/O KANYORE, Respondent (Original Accused)

## Criminal Appeal No. 189 of 1951 (Case Stated)

(Appeal from decision of First Class Magistrate's Court at Nairobi- $R. C.$ Laming, Esq.).

Section 333 Kenya Penal Code—Intention—"Wilfully and unlawfully"—Burden of proof.

The accused, hearing a rustling among maize which he believed to have been caused by a wild pig, threw a spear and struck a cow. He was charged under section 333 of the Kenya Penal Code with wilfully and unlawfully maining an animal:

He was acquitted on the ground that it had not been proved that he had speared the cow wilfully. The accused said he was drunk at the time but the Resident Magistrate did not find this proved.

Held (27-7-51).—That although it had been established that the accused had thrown a spear wilfully and the consequence of that wilful act was the maining of a cow, the prosecution had not discharged the burden of proving that the accused had wilfully and unlawfully maimed a cow and the accused had been rightly acquitted.

Cases referred to: Wheeler v. New Merton Board Mills, Ltd., 1933 2 K. B. 669; The Queen v. Senior (1899) 1 Q. B. 283; Cotterill v. Penn, Kenny's Cases on Criminal Law<br>p. 549; Horton v. Gwynne (1921) 2 K. B. p. 861; Roper v. Knott (1898) 1 K. B. 898; Miles v. Hutchings (1903) 2 K. B. p. 714.

Somerhough, Deputy Public Prosecutor, for the Crown.

Respondent absent, unrepresented.

JUDGMENT.—This is an appeal by the Attorney General by way of case stated against the acquittal of Ngaru s/o Kanyore on a charge of wilfully and unlawfully maiming an animal, to wit a cow capable of being stolen by spearing it in the stomach with a spearhead.

The learned Magistrate held, according to the case stated, (a) that "the prosecution had not proved beyond reasonable doubt that the accused speared a cow wilfully, knowing that it was a cow and not a wild pig, and that in the circumstances the mistake was quite probable", and (b) that "the accused had acted on an honest and reasonable mistake of fact and had therefore a good defence to the charge under section 11 of the Penal Code".

It appears in the case stated that the position of the accused at the trial had been that he did not see the animal at which he threw the spear, but only heard "a rustling among the maize which he believed to have been caused by a wild pig", and that in the opinion of the Magistrate "there was no ground to believe that the accused's belief that the animal heard was a wild pig was impossible".

It also appears in the case stated that at the trial the accused had said that he had been to a drinking party and was under the influence of alcohol when he threw the spear, and that in the opinion of the Magistrate the evidence of drunkenness was "of too uncertain and unsatisfactory a nature to enable him to find as a fact that the accused was under the influence of alcohol at the time".

$\iota_{\mathbf{S}_1}$

The questions of law submitted by the Attorney General for the opinion and determination of the Court are these:-

- (a) Was the learned Magistrate correct in finding that it was a lawful act on the part of the accused to throw his spear at a noise without ascertaining at what object he was in fact projecting a lethal weapon? - (b) Was the Magistrate correct in his judgment that the prosecution had to prove beyond reasonable doubt that the accused speared this cow wilfully knowing that it was a cow and not a wild pig? Was not the burden of proof upon the prosecution limited to proving: -

(i) that the animal killed was a cow:

(ii) that it was speared as result of a wilful act of the accused:

(iii) that the act of the accused in the circumstances was unlawful?

(c) Was the defence set up by the accused and found by the Magistrate to be a defence of an honest and reasonable mistake of fact, as referred to in section 11 of the Penal Code, open to the accused in view of the fact that by his own voluntary act he was under the influence of alcohol at the time he did the act complained of?

The section under which the accused was charged reads as follows: —

"Any person who wilfully and unlawfully kills, maims or wounds any animal capable of being stolen is guilty of misdemeanour."

It was argued by the learned Deputy Public Prosecutor that once it had been established, as indeed the accused had admitted, that he had thrown a spear wilfully, and that the consequence of that wilful act was the maining of a cow even if it was not intended, the prosecution had discharged the burden of proving that he had wilfully and unlawfully maimed a cow.

The only authority cited in support of this argument was the case of Wheeler v. The New Merton Board Mills Limited, (1933) 2 K. B. 669 in which it was held that the installation by the defendants in their factory as part of the plant, with the intention that it should be used by their employees, of a dangerous machine which was not fenced or guarded as required by the Factory and Workshop Act, 1901, was a wilful act independently of any intent to injure.

The case merely decided that if an act was expressly forbidden by statute, the doing of that act would be deemed wilful, where it appeared that it was done deliberately and intentionally as opposed to accidentally or inadvertently. The same principle is to be extracted from numerous cases in England, for instance the case of *The Queen v. Senior* L. R. (1899) 1 Q. B. 283, where the accused wilfully neglected his child in a manner forbidden by the Prevention of Cruelty to Children Act. 1894.

Similarly, as the killing of house pigeons is expressly forbidden by section 23 of the Larceny Act, 1861, it was held in Cotterill v. Penn (Kenny's Cases on Criminal Law at page 549) that where a person *shot at a pigeon*, thinking it was a wood pigeon and not, as it was, a house pigeon, he was rightly convicted: although in *Horton v. Gwynne* L. R. (1921), 2 K. B. 861, Darling, J., said in effect that it would be different "if a crow had been shot at and a pigeon unintentionally killed".

But these cases which deal with acts that are statutorily forbidden are no guide in cases where a person is charged with injury to property, and the section under which the accused was charged, section 333 of the Penal Code, is contained in Division VI of the Code relating to "Malicious Injuries to Property". In the case of injuries to property the authorities in Archbold make it abundantly clear that very different principles apply. $\mathcal{A}_{\mathcal{A}}(x)$ الأعام والمتماعات

In *Roper v. Knott* (1898), 1 K. B. 898, a milkman added water to his employer's milk and Lord Russell of Killowen, C. J., said that in construing section 52 of the Malicious Injuries to Property Act, 1861, "a man must be held to do a thing wilfully when he does it either intending to cause damage or knowing that the act that he commits will cause damage to the property on which it is committed". While in Miles v. Hutchings, L. R. (1903), 2 K. B. 714, a case under the same Act it was held that even "the existence of a malicious intention would be negatived if the appellant wrongly, but honestly, believed that it was necessary to shoot a dog (which he had shot) in order to drive him away".

We have no doubt that the interpretation which the Deputy Public Prosecutor has sought to place on section 333 of the Penal Code is wrong. The accused could not properly have been convicted under that section merely on proof that he had wilfully thrown a spear which had consequences he did not intend, but only on proof that he had wilfully, in the sense of intentionally, maimed a cow. If the Deputy Public Prosecutor is right, a householder in Nairobi who shoots at an animal in his compound at night in the *bona fide* and reasonable belief that it was a lion and unfortunately kills a trespassing cow, would be liable to be sent to prison for two years.

We do not propose to deal with the question of drunkenness as it does not arise from the facts found by the Magistrate as they appear in the case stated. In his opinion Africans often allege they were drunk in the mistaken belief that drunkenness is a defence, and as we have already said, he was totally unable to find that the accused was in fact drunk at the time he threw the spear. Even if voluntary drunkenness excludes the defence of mistake it would be unconscionable to hold it against the accused when the Magistrate found there was no substance in his assertion.

The answer to question $(a)$ submitted by the Attorney General is that the throwing of a spear is not *per se* lawful, and that as the accused threw a spear, as he reasonably thought, at a wild pig, his act was not unlawful.

The answers to the questions contained in $(b)$ flow from what we have said.

$\mathcal{O}(\mathbb{R}^n)$

Having regard to the finding that the accused was acting under an honest and reasonable, though mistaken, belief that he was throwing his spear at a wild pig and not a cow, he could not be held to have wilfully and unlawfully maimed a cow and was properly acquitted. The appeal is, therefore, dismissed.