[1946] EACA 37

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda), and SIR G. GRAHAM PAUL, C. J. (Tanganyika)

REX, Respondent (Original Prosecutor)

EMILIO LUMU, Appellant (Original Accused) Criminal Appeal No. 72 of 1946

(Appeal from decision of H. M. High Court of Uganda)

Criminal Law—Murder—Manslaughter—Provocation.

The appellant on being informed and honestly believing that the deceased had bewitched his child and given him a black powder which brought about his death went in search of the deceased with the intention of killing him and speared him to death. The appellant while he was present at the child's death was not present when the powder was administered. He was convicted of murder.

Held (18-5-46).—The doctrine of legal provocation which reduces a killing which would otherwise be murder to manslaughter finds no application when the provocative act was<br>not committed in the presence of the accused. Thus whether the appellant believed that<br>the deceased had performed an act of witchcraft o such a belief does not constitute legal provocation as the act was not performed in his presence.

Appeal dismissed.

Cases referred to: R. v. Fisher, 8 Car. & P. 182; R. v. Rothwell 12 Cox 145; R. v. Fabiano and others, 8 E. A. C. A. 96.

Wilkinson for the appellant.

Dreschfield, Crown Counsel (Uganda), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The question for decision in this appeal is whether the killing which would otherwise be murder is manslaughter by reason of legal provocation. The accused who was a soldier serving in the Middle East found his sister's child ill one day after his return, and received certain information from his sister as to the orgin of the illness as a result of which on the death of the child, he left the house armed with a spear, with the deliberate intention of killing the deceased for the reason that he believed him to have been the author of the child's death, and carried out that intention. Considering all the evidence in the case it would seem that<br>the accused's belief on the information he had received was that the deceased was a wizard and had brought about the child's death by witchcraft. In his deposition before the magistrate the accused said "I stabbed the deceased Sempogo for giving medicine to my son and killing him. If he had not given medicine to the child I would not have done anything to him. I felt it very badly for such a young child being bewitched. I would rather he had bewitched me. Therefore I was angry and went to stab deceased and I was weeping when I came to stab him. I had no intention of killing him. That is all. The child had died that same day at 7 a.m. and I killed deceased at 8 a.m." In his statement to the police he said "I killed him because he gave my son some medicine and. killed him. That is the reason why I killed him. The deceased is a well-known witch doctor. The Muluka Chiefs both knew of this". The accused in his evidence at the trial said "Soldier 1941 until 1945 served in the Middle East. I live within 100 yards from Sempogo's house, he was my father-in-law. I have a sister named Ceciria whose husband was in the army. I returned from the

army last October and went to live in my house and Ceciria came to live with me, she brought her child, a little boy of two years old. He was a healthy child, but fell ill. I went away to a party, a comrade's wedding and when I returned the child was very ill. I returned on a. Tuesday and the child died at 7 a.m. on the Wednesday. I had returned at 7 a.m. on the Tuesday and the child appeared seriously ill. I was holding (nursing) the child when it died, I was informed by Ceciria that Sempogo had given the child some medicine in my absence. I received information that Sempogo was killing people. I did not know Sempogo before I returned from the army. It was reported that he practised witchcraft killing people with medicine. I accordingly thought Sempogo (deceased) was responsible for the death of the child. I took my spear and went and stabbed him immediately after the child had died. I did not say anything to Ceciria, she began weeping and I went through a window straight to Sempogo, found him outside his house. I said nothing to him, but threw the spear at him. I then went to Gombolola. I used to pay visits to Sempogo on a few days I did not see him practise any witchcraft .... If Sempogo had been my comrade in the army and he had practised sorcery, I would have shot him ... I quite believed that Sempogo had caused the illness of the child.... In 1943 I was informed by letter that Sempogo was practising witchcraft but I then paid no attention to it and did nothing about it .... The child was dead when I went and killed Sempogo .... I have not married Sempogo's daughter; he was related to my wife. I married her in 1944-after I had heard of Sempogo's witchcraft. I thought he would never bewitch us. I had been away two days Sunday to Tuesday, the child was well when I left. When a person is dying of witchcraft, it is no use taking him to the dispensary". The information which the accused received from his sister was that she had seen the deceased giving a black powder to the child, that the child began to vomit, and to pass motions and to cough, symptoms which the child had not exhibited before. Her evidence continued. "Two days later accused returned and the child then was very seriously ill. The child died the following day, Wednesday. Accused was present. We both began to weep and the accused went into the inner room. I did not see him again. I think that medicine caused his death. I have known Sempogo a year and a half. I have not seen him touch the child before. I had heard that he gave medicine. He was reputed to be a witch doctor. The medicine was a black powder. He held the child on his left arm (demonstrated) and opened its mouth with his right hand .... I have heard of deceased's sorcery from people who have had his medicine and died. I was sick and weak and had no strength to take the child anywhere for treatment. I told the accused about the deceased's administration of medicine on his return on Tuesday morning".

From the evidence which has been set out it seems clear that the accused and his sister honestly believed the deceased to be a wizard, who by his witchcraft medicine had caused the deaths of many people, that the black powder which he gave to the deceased's child, they believed to be witchcraft medicine and that it caused the child's death. Considering the case then as an act of witchcraft performed by the deceased, on the facts of the case it does not come within the principle laid down in Rex v. Fabiano and Others 8 E. A. C. A. 96 as the alleged act of bewitching had not been performed in the presence of the accused. It had happened a few days before it and consequently could not let in the excuse of legal provocation. We cannot find any support for the proposition that the excuse of legal provocation could be extended so as to apply to the facts of this case on the basis that the accused honestly believed that the deceased had bewitched the child and caused its death.

Turning next to the question whether quite independently of witchcraft, the doctrine of legal provocation could be applied on the assumption that the accused

on learning that the deceased had poisoned the child by natural means believing that information to be true and seeing the child die in his arms there and then set out to find the deceased and spear him and did so. Assuming these facts to be true can he be excused by reason of legal provocation? In our view he cannot and for the reason that there was no provocative act committed in his presence. The provocative act if such it can be called was the physical act of administering the black powder. That had happened two days previously and had not occurred in the accused's presence and that fact alone is sufficient to exclude the application of the doctrine of legal provocation. This essential of the wrongful act or insult being done "in the presence of an ordinary person to another person who is under his immediate care or to whom he stands in a conjugal, parental, filial or paternal relation" is expressly stated in section 199 of the Uganda Penal Code, but even according to English law this essential would seem to be implied. In Reg. v. Fisher 8 Car. & P. 182 (before Mr. Justice Park, Mr. Baron Parke and Mr. Recorder Law) at 186 Park J. in summing up to the jury said with<br>reference to provocation "In all cases the party must see the act done". The wellknown special exception to that statement of the law is R. v. Rothwell 12 Cox 145, where Blackburn J, directed that if a husband suddenly hearing from his wife that she had committed adultery, he having had no idea of such a thing before were thereupon to kill his wife it might be manslaughter".\* In the present case whether it be considered founded on a belief in an act of witchcraft or an act of poisoning the majority view is that there was no legal provocation and the appeal is accordingly dismissed. This does not of course preclude the Executive from considering the circumstances of the case.

<span id="page-2-0"></span>\* Since the decision in Rex v. Holmes (1946) 1 A. E. L. R. 524 the dictum of Blackburn, J., and the cases which seem to accept or apply it, can no longer be regarded as good law.-Editor.