[1948] EACA 18

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir BARCLAY NIHILL, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika), and BOURKE, J. (Kenya)

## REX, Respondent (Original Prosecutor)

## (1) EZEBERI EKOLIT, (2) PAULO OCHOLE, (3) OCHURE S/O WAKOTUM. (4) MADUDU S/O ACHOKET, Appellants (Original Accused Nos. 1, 2, 3 and 4)

Criminal Appeals Nos. 304, 305, 306 and 307 of 1947

(Appeals from the decision of H. M. High Court of Uganda)

Criminal Procedure—Section 274 Uganda Criminal Procedure Code—Sections 303 and 279 Kenya and Tanganyika Criminal Procedure Codes-When accused should give evidence.

In a trial for murder of the four appellants witnesses for the defence were called and gave evidence before all of the appellants had given their evidence.

Held (3-2-48),—That where several accused persons are tried jointly and each desires to give evidence, the better practice is that their evidence should be taken in turn before any defence witnesses are called.

Appellants absent, unrepresented.

Holland, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR BARCLAY NIHILL, C. J.).—In this case the four appellants, whose appeals we have consolidated, were jointly convicted of murder in the High Court of Uganda in that they together beat the deceased to death. Each appellant avers that the weight of evidence is against their presence at the beating at all and the first appellant, Ezeberi, wife of the deceased, pleads in the alternative that the offence committed was at most, manslaughter. On the first point the evidence of participation consisted in the main of evidence given by three girls of tender years, but the learned Chief Justice, after directing both himself and the assessors as to the need for caution in accepting such evidence, came to the conclusion that he implicitly believed their stories, and a similar view was taken by both assessors. Furthermore, the evidence of the little girls was corroborated by a male adult named Kwirino, whose evidence was accepted by the first appellant in her evidence as being the truth except insofar as the witness identified her as a participant in the assault. With this finding of fact it is impossible for this Court to interfere.

On the second point it is true that the medical evidence established that none of the wounds found on the deceased were individually very serious or dangerous, but the doctor, who could find no other cause of death, was satisfied that death was due to shock consequent to the multiple blows received.

In cases of death by stick-beating this Court will always give to an appellant the benefit of any doubt as regards murderous intention, but in the present instance we agree with the view taken by the learned Chief Justice that the nature of the combined attack upon the deceased, coupled with the heavy weapon used, indicated beyond doubt that the appellants shared a joint intention to inflict at least grievous bodily harm upon the deceased, that is to say harm of so serious a nature that it might in all probability endanger life. On this view of the evidence the offence committed by the appellants was murder and not mansläughter, for a person who knowingly and with intent takes the risk of inflicting harm of this character is guilty of murder if his victim dies.

Before dismissing the appeals there is one observation on procedure we desire to make. In this case each accused, besides giving evidence, called witnesses and we note that the witnesses for each accused were called before the next accused gave evidence—section 274 of the Uganda Criminal Procedure Code which is similar in terms on the material point, we are considering to sections 303 and 279 of the Kenya and Tanganyika Procedure Codes. The section lays down that an accused person who elects to give evidence shall do so before he or his advocate examines his witnesses (if any). The reason for this provision must be that as an accused person cannot be out of Court whilst his witnesses are giving evidence, it is in the interests of justice that he should give his evidence first. We think therefore that where several accused persons are tried jointly and each desire to give evidence, the better practice, and one more in keeping with the principle of the section, is that their evidence should be taken in turn before any defence witnesses are called. We would add that the failure to observe this practice in the present case in no way vitiates the proceedings.

The appeal of all four appellants is dismissed.