[1943] EACA 27

# COURT OF APPEAL FOR EASTERN AFRICA

#### Before Sir JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda) er n and MARK WILSON, Ag. C. J. (Tanganyika)

### REX, Respondent (Original Prosecutor)

## (1) ELIGU s/o ODEL, (2) EPONGU s/o EWUNYU, Appellants (Original Accused Nos. $1$ and $2$ )

## Consolidated Criminal Appeals Nos. 41 and 42 of 1943

## Appeals from decision of H. M. High Court of Uganda

Criminal Law-Murder-Statements by deceased as to cause of death-Dying. - declaration—Corroboration.

The appellants appealed from convictions of murder.

The deceased came along a road near to the two accused and was singing. This annoyed the two accused, who bound the deceased with a rope and later, after unbinding him, beat him to death with a stick. The principal evidence against the accused was contained in certain statements made before his death by the deceased as to what happened and who assaulted him.

*Held* $(19-2-43)$ .—(1) That a careful direction should be given by the Judge as to the nature of evidence contained in a dying declaration and as to the caution with which it should be received.

(2) That whilst corroboration of a statement as to the cause of death made before his death by the deceased is desirable it is not always necessary in order to support a conviction. To say so would be to place such evidence on the same plane as accomplice<br>evidence and would be incorrect. There was corroboration against each accused.

(3) That there was sufficient evidence upon which both accused could be convicted of associating with each other in the crime. R. v. Muyovya bin Msuma, 6 E. A. C. A. 128 applied.

R. v. Chanderasekera (1936) 3 All. E. R. 865 referred to.

The appeals were dismissed.

Appellants absent, unrepresented.

#### Brown, Solicitor General (Kenya), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).-In this case there is evidence that the two accused caused the death of the deceased by hitting him on the head with the deceased's stick. The evidence with regard to this is contained in statements made by the deceased to four different people as to the cause of his death. There is clear evidence that the statements were made. It was fully appreciated by the learned trial Judge that what the deceased said should be received with caution and here we will say that no objection can be taken to the careful and correct direction he gave to himself and the assessors in this respect. Here we repeat what this Court said in the case of Rex v. Muyovya bin Msuma, 6 E. A. C. A. 128 at p. 129: "We are not prepared to rule that in no circumstances can a conviction proceed upon evidence consisting of a dying declaration, but on the other hand we are prepared to say that a careful direction should be given by the Judge as to the nature of such evidence and the caution with which it should be received." He also directed himself and the assessors as to whether there was any corroboration of the deceased's statement. Corroboration is desirable, of course, though we do not say that it is always necessary to support a conviction. To say so would be to place such evidence on the same plane as accomplice evidence and that would be incorrect. In the case of the first accused the

deceased's statement receives corroboration in the evidence that prior to his death the deceased's stick had been taken from him by the first accused, the second accused to whom we shall refer later being present at the time, and this stick was found at the place near the first accused's house where the deceased met his death.

As regards the second accused, he was associated with the first accused in arresting the deceased earlier on the evening of his death for the trivial act of singing on the road, which apparently offended against some local regulation. The evidence on this part of the case is that of Ajwado, the wife of the first accused by native custom. She said: "I remember one evening Ekadu (deceased) came by our house about sunset. Ekadu was singing. Both accused and Ateru were in our yard. Eligu called to him and asked why he was singing as he walked there. Ekadu came and said he was sorry he had offended. Eligu took his stick. from him—this is it (produced and identified A). Epongo fetched a rope: Eligu told him to do so. They bound Ekadu. They started to take him to the Muluka chief, but returned to our yard. They went some way in that direction, but turned back. Then in our yard Eligu untied Ekadu ... Eligu had Ekadu's stick."

In quoting this evidence our object is to show that in the earlier happenings of the evening the second accused was associated with the first accused in such a way as to point to the second accused being the second assailant when the deceased was later attacked by two men. It would not be reasonable to assume that a stranger to the earlier events had identified himself with the later attack on the deceased. Besides there is the point that the deceased in his identification of his assailants would be less likely to be mistaken than if he had been suddenly set upon by persons with whom he was unacquainted. Here not only were the accused known to the deceased, but he had been in their company in circumstances we have set out, earlier the same evening, this fact making the deceased's statement more credible. It was said by the Privy Council in Rex v. Chanderasakera (1936), 3 All E. R. 865, at 869: "Apart from the evidence proceeding from the deceased woman the other evidence was not sufficient to warrant a conviction, but at the same time that other evidence was not merely consistent with the deceased's statement but pointed in the same direction."

In the present case, as in *Chanderasekera's* case, it may be said that the other evidence pointed in the same direction as the deceased's statement. We dismiss the $\alpha$ appeals.