[1951] EACA 180

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Barclay Nihill, President, Sir Newnham Worley, Vice-President, and LOCKHART-SMITH, J. of A.

## (1) TINDIRA s/o CHIRU AND (2) MAIRA s/o PANDUJI, Appellants

v.

## REX, Respondent

## Criminal Appeals Nos. 88 and 89 of 1951

(Appeals from decision of H. M. High Court of Tanganyika—Mahon, J.)

Homicide-Two accused both striking deceased blows either of which if left untreated would have proved fatal—Cause of death.

The two appellants were convicted of murder before the High Court of Tanganyika. Both accused who were drunk and armed with sticks, intervened in a quarrel over a woman. The deceased unarmed came up and asked what was going on. The second appellant thereupon hit him a blow on the left temple with a bamboo stick from which the deceased's skull was cracked, and there was a hæmorrhage. The first appellant then hit deceased over the head with a heavy stick inflicting a wound skull-deep fracturing his skull and there was bleeding from the brain. The cause of death was hæmorrhage from this latter fracture. The doctor gave his opinion that the effect of the fracture was necessarily fatal and that the crack over the temple if left untreated would also have proved fatal and it accelerated death in conjunction with the fracture.

Held $(21-6-51)$ .—(1) That although there was no evidence of common intention the second appellant was rightly deemed to have caused death, vide section 203, Tanganyika Penal Code.

(2) The degree of culpability of second appellant must accordingly be separated from that of the first appellant.

First appellant's appeal dismissed.

Second appellant's appeal allowed and conviction for manslaughter substituted.

Cases referred to: Rex v. Tubere, 12 E. A. C. A. 63; Rex v. Obiya Odinga (Cr. App. $31/51$ ).

Appellants absent, unrepresented.

Innes, Solicitor General, Tanganyika, for the Crown.

JUDGMENT.—These two appeals, which we have consolidated, are from convictions for murder had before the High Court of Tanganyika. The facts which the learned trial Judge found proved are that the two appellants, who were drunk and armed with sticks, intervened in a quarrel, which arose over a woman; the deceased, who was unarmed, came up and asked what was going on whereupon the second appellant hit him a blow on the left temple with a bamboo stick causing deceased to fall on his hands. As he was about to get up the first appellant hit him over the head with a heavy pole and the deceased fell to the ground unconscious. The appellants ran away but were captured.

The medical evidence was that the deceased had a bruise on the left temple, under which the skull was cracked and there was a hæmorrhage. On the crown of his head there was a wound skull-deep, under which there was a fracture of the skull and bleeding from the brain. The cause of death was hæmorrhage from this fracture.

The doctor's opinion was that a thin bamboo stick used with moderate force could have caused the cracking of the skull on the temple and the heavy stick or pole exhibited (exhibit A) could have caused the wound on the crown of the head. He further gave his opinion that the effect of the fracture was necessarily fatal and that the crack over the temple, if left untreated, would also have proved fatal. As it was, it accelerated death in conjunction with the fracture.

We can find nothing of any merit in the first appellant's appeal. When called on to plead at his trial, he admitted having struck the deceased on the head with a stick and that the blow he struck had caused the death of the deceased; but later in his defence he said that he only struck the deceased a blow on the left side of the head in retaliation for a blow received from the deceased and that the blow on top of the head was struck by one Piagu (a Crown witness) with a big stick.

The learned trial Judge, rightly in our opinion, rejected this story and, accepting the evidence for the Crown concurred with the two assessors in finding the appellant guilty of murder. While satisfied that the appellants were both drunk at the time, he rightly held that there was nothing in the evidence to suggest such a degree of intoxication as would afford them a defence.

In the appeal of the second appellant the only points which call for consideration are whether he can rightly be deemed to have caused the death of the deceased and, if so, whether his offence was murder or manslaughter. He denied having hit the deceased at all but the assessors and the trial Judge disbelieved him.

It is clear from the medical evidence that the injury he inflicted on the deceased was not the immediate or sole cause of death, the immediate cause of which was the blow struck by the first appellant. We do not find in the record any evidence to support a common intention formed in the minds of the two appellants to attack the deceased. There is nothing to suggest that when either of the appellants struck his blow it was in pursuance of a preconceived plan. Nevertheless, we are of opinion that the second appellant was rightly deemed to have caused death. Section 203 of the Penal Code of Tanganyika (Cap. 16 of the Laws of Tanganvika. 1947) enacts: —

"A person is deemed to have caused the death of another person although his act is not the immediate or sole cause of death in any of the following cases-

(e) if his act or omission would not have caused death unless it had been accompanied by an act or omission of the person killed or of other persons."

It is not necessary here to attempt a comprehensive explanation of this provision, which indeed might not be easy to do, and we use it merely to buttress the conclusion we have reached on the present appeal. If the medical evidence were that the cracking of deceased's skull and consequent hemorrhage would not have caused death but for the deceased's own refusal to have medical attention or the omission of his relatives to obtain medical attention in good time, then under this paragraph, the appellant would be rightly deemed to have caused death. A fortiori, when the evidence is that the injury inflicted would of itself have caused death in due course. It matters not in such a case that death was accelerated by a later and more severe injury inflicted by another person.

It remains for us to consider whether the second appellant's offence was murder or manslaughter. The malice aforethought required to sustain a conviction for murder could, in the circumstances of this case, only be established by evidence proving that the appellant when he struck the deceased, intended to

cause death or do grievous harm. As was said by this Court in Rex v. Tubere 12 E. A. C. A. $63:$

"With regard to the use of a stick in cases of homicide, this Court has not attempted to lay down any hard and fast rule. It has a duty to perform in considering the weapon used, the manner in which it is used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the use, say, of a spear or a knife than from the use of a stick; that is not to say that the Court takes a lenient view where a stick is used. Every case has, of course, to be judged on its own facts."

This duty was recently reaffirmed by this Court in *Criminal Appeal No.* 31 of 1951, Rex v. Obiya Odinga.

In the matter now before us the learned Judge does not seem to have made any adequate examination of any of these factors. He appears to have assumed wrongly the existence of a common intention and not to have realized that different considerations would have to be taken into account in determining the intention of each accused if a common intent could not rightly be inferred. In the case of the first appellant the heavy weapon used and the great force exercised lead irresistably to the conclusion that he intended to cause, at least, grievous harm. In the case of the second appellant the weapon used has not been produced, but it was, according to the evidence, a thin bamboo stick about three feet long. One witness said it was as thick as his thumb, and the medical evidence was that moderate force must have been used. In these circumstances it is impossible for us to hold that, had the trial Judge not directed himself wrongly as to the common intent and had considered the degree of culpability of the second appellant separately from that of the first appellant, he must necessarily have concluded that he intended to cause grievous harm and found him guilty of murder. We think he might well have come to the conclusion that we have reached ourselves that the prosecution did not prove beyond reasonable doubt the existence of malice aforethought.

We therefore allow the appeal of the second appellant, quash the conviction of murder and substitute a conviction of manslaughter, and impose a sentence of ten years' imprisonment with hard labour.

The appeal of the first appellant is dismissed.