[1947] EACA 61

## APPELLATE CRIMINAL

## Before NIHILL, C. J., and COFFEY, Ag. J.

## REX, Respondent (Original Prosecutor)

#### ν.

# PETER MBURUGU, Appellant (Original Accused)

## Criminal Appeal No. 506 of 1947

Criminal law—Definition of assault—Section 244, P. C.

The appellant was convicted of assault contrary to section 244, P. C. The evidence accepted by the Magistrate's Court was that the appellant raised a stick, shook it at the complainant and said, "Go back, go back".

Held (11-12-47).—To constitute an assault there must be circumstances denoting at the time an intention, coupled with a present ability, of using actual violence. The appeal was dismissed.

Stephens v. Myers 4 CAR. & P. 350 (172), E. R. 735, referred to.

### Nene for the Appellant.

Modera for the Crown.

JUDGMENT.—The short point for consideration on this appeal is whether the Magistrate on the evidence which he accepted was right in law of convicting the appellant for an assault on the person of Chief M'Thurachu, contra to section 244 of the Penal Code. The appellant was also charged with an offence against section 65 (1) of the Penal Code, but on this count the Magistrate found the evidence inconclusive and acquitted him. The facts of this case are briefly as follows: -On 12th August, 1947, the above-named Chief was holding a baraza in the lower part of his location at a place called Rengai. The main object of the meeting was to call the people to report to the Chief's clerk for their census tickets. The meeting developed into a stormy one and it is clear that the appellant took a leading part in opposing the Chief who, it would seem, was not over-popular in that part of his location. The appellant is a man of some education and is an educational and religious worker, and it is, we suppose, natural that he should have taken a prominent part at the baraza. His intervention seems to have been greatly resented by the Chief, who decided to leave the baraza, and he proceeded to walk towards his mule; by now tempers were getting hot and it was at this stage that the alleged assault took place. There is a conflict of evidence as to what exactly happened, but the Magistrate has found that the appellant raised a stick which he was carrying in his hand and shook it at the Chief saying: "Go back, go back". He has accepted the Chief's statement that he believes the appellant would have struck him if he had not gone away and if the older men had not intervened. The Magistrate also found against the appellant on the point as to whether he had a stick in his hand in order to emphasize his points when he was speaking at the baraza or whether he snatched it from a bystander just before he threatened the Chief. After the appellant had shaken the stick the Chief went away and did not receive any actual blow at the hands of the appellant. The version of the incident given by the Chief was supported in the main by other witnesses, although there are small differences as one would expect. The general picture is one of the appellant attempting to hasten the departure of the Chief by a combination of threatening words and gestures. It is not always easy in assault cases where there is no actual battery to say precisely what set of circumstances will constitute an assault. Where a person acts in a threatening manner, as by holding up a hand or stick to constitute an assault, there must be circumstance denoting the time and intention, coupled with present ability of using actual violence against the person threatened. An exasperated motor driver who shakes his fist at a driver of a passing vehicle who has been, in his opinion, guilty of bad road manners does not commit an assault. It would have been a help to this Court had the witnesses been questioned in more detail as to the distance which separated the Chief and the appellant when the latter raised his stick.

Learned Counsel for the Crown has referred us to the old case of *Stephens v*. Myers, 4 CAR. & P. 350 (172), E. R. 735, where a member at a parish meeting advanced upon the chairman with clenched fist uttering a remark that he would pull the Chairman out of the chair rather than obey his order to leave the meeting. He was stopped before he got within striking distance, but Trindal, C. J., in directing the jury, said that if they found that the defendant was advancing with the intent to strike the Chairman and would have done so within a second or two of time but for the intervention the action amounted to an assault in law. The evidence in this case, although somewhat similar, is less definite, but after a careful analysis of it as recorded by the Magistrate we are not prepared to say that there was no evidence on which the Magistrate could take the view that the appellant had an intention to assault the Chief and would have done so but for either the intervention of the other men or the departure of the Chief. That being so the conviction for a technical assault was not wrong in law.

Mr. Nene has urged that even if the conviction can be sustained the sentence imposed was much too severe. We are ourselves of the opinion that the Magistrate might well have contented himself with an order under section 33 of the Penal Code, but at the same time he was entitled to take into account the circumstances surrounding the appellant's violent and ill-mannered behaviour and we cannot say that he exercised his discretion wrongly in adding a sentence of imprisonment. As we understand that the appellant is still in prison, although his sentence for the assault has expired, we are forced to conclude that he is not prepared to enter into a bond to keep the peace or that, if he is, he cannot obtain two sureties who will answer for his good behaviour. In either case the fact would seem to provide the best justification for the Magistrate's order.

The appeal is dismissed.