[1935] EACA 64

## COURT OF APPEAL FOR EASTERN AFRICA.

# Before ABRAHAMS, C. J. (Uganda) Ag. P., SIR JOSEPH SHERIDAN, C. J. (Tanganyika), and LUCIE-SMITH, Ag. C. J. (Kenya).

# REX, Respondent (Original Prosecutor) 12.

# PIRMIN BIN KUNJANGA, Appellant (Original Accused). Criminal Appeal $27/1934$ .

Criminal Law—Murder—Plea—Words admitting killing under provocation-Plea of Not Guilty entered-Unsworn statement by accused—Interrogation by Court.

appellant was charged with murder. $_{\rm{The}}$ On being arraigned he said: "I admit that I killed P.; I struck her with a spear when I was half-mad with anger". A plea of Not Guilty was entered and the trial proceeded. The Magistrate who tried the case, and the Judge who confirmed the finding of the Magistrate, both commented upon the fact that the appellant admitted that he killed the deceased. The appellant having elected not to give evidence on oath made an unsworn statement. He was questioned by the Magistrate regarding a discrepancy between his statement and his statement at the preliminary inquiry.

#### $Held$ (21-3-34).--

(1) That an inculpatory statement in answer to a charge cannot be used against an accused person if a plea of not guilty is entered.

(2) That no question should be asked of an accused person who has not given evidence on oath unless for the purpose of explaining something obscure or ambiguous in his unsworn statement: a discrepancy between two statements is not of itself obscure or ambiguous.

Nihill (Solicitor-General, Uganda) for Crown.

Appellant absent unrepresented.

JUDGMENT.—The Magistrate who tried this case opens his judgment with the observation that the accused admits both in his plea and statement that he killed the woman he was charged with murdering. The learned Judge who confirmed the finding of the Magistrate observes that the accused admitted in answer to the charge having killed the deceased with a spear, and that the evidence of opportunity, of flight, and of finding the blood-stained spear close to the body of the victim goes to show that he did so. We are unable to accept the proposition that an inculpatory statement in answer to a charge can be used against an accused person if a plea of not guilty is entered. A plea of not guilty must be taken as a general denial,

and the words which are construed as the plea cannot also be construed in derogation of the plea.

The statement at the trial was regarded by the learned Judge as exculpatory and as entitled to the same weight as if it were a sworn statement. It contains an admission of killing under a certain amount of provocation and if there were reliable direct evidence that the accused actually did the killing, in the interests of the accused its admission would be justified; but there is no such evidence and in these circumstances it would be unfair to the appellant to admit the statement with all that it implies.

We are of opinion, however, that the evidence disclosed a prima facie case against the appellant. It was shown that during a drinking party in the evening his obstreperousness brought upon him a blow or a slap from John, and that he left and was conducted home by two of the party. An hour later Potomire, the mother of John who was outside John's house screamed that she had been stabbed with a spear; John rushed out and almost immediately was heard to shout that he had been stabbed with a spear. Both were found wounded and died on the spot and near to where John died a spear was found covered with blood. This was identified as the property The shaft had been shortened by breaking of the appellant. it, and the remaining portion was found in the house of the appellant that night. An unsuccessful seach was made for the appellant who endeavoured that night to effect an entrance into the house of his sweetheart's father saying he had come from the bush. Late on the following night the appellant returned to his house and was arrested.

This evidence of motive, opportunity, recent possession of the weapon employed, proximate departure and continued absence from his home were of course not favourably explained by the appellant and in our opinion the inference to have been safely drawn if he had made no statement at all would have been that no explanation was possible. We therefore dismiss the appeal.

There are certain irregularities in the trial of a by no means insignificant character upon which we must comment. There is nothing on the record to show that the statement of the appellant in the lower Court was put in at the trial. It must have been seen by the Magistrate for he actually questioned the appellant about it. The interrogation of the appellant on his statement at the trial was most improper. No questions should be asked of an accused person who has not given evidence on oath unless for the purpose of explaining or clarifying something obscure or ambiguous in his unsworn statement. A discrepancy between two statements is not of itself obscure or ambiguous.