[1946] EACA 47

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika) and SIR JOHN GRAY, C. J. (Zanzibar)

REX, Respondent (Original Prosecutor)

$\mathbf{v}$

(1) MGUNDULWA s/o JALU, (2) KASICHI s/o MTOINAGA, (3) MWEZI s/o MWAJA, Appellants (Original Accused)

Criminal Appeals Nos. 212, 213 and 214 of 1946

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

Criminal Law—Murder—"Common intent"—Evidence—Extra judicial statement -Dying declaration—Admission in derogation of plea.

M. J., K. M. and Mwezi M. with several others went on a burglarious expedition in the course of which the owner of the hut burgled was killed. All three were charged with murder. M. J. and K. M. on being arraigned denied the charge but M. M. said, "I admit it". Pleas of not guilty were entered in respect of all three.

. There was no evidence that any member of the party was armed or that anyone contemplated violence, nor was there any evidence that any of the accused struck the deceased or even that M. J. or K. M. entered his hut at all.

During the trial the learned Judge excluded an extra judicial statement made by M. M. on the ground that it was full of statements incriminating others. In excluding the statement the learned Judge recorded the following note "Accused interposes to say he admits making a confession and that he is certainly guilty". In the statement M. M., although he admitted taking part in the burglary, denied striking the deceased or entering his hut. There was, however, a statement, made by the deceased to the effect that one Mwezi had struck him and that there were at least two thieves.

The learned Judge found that Mwezi M. had killed the deceased and that M. J. and K. M. were acting in concert with him. He convicted all three of murder. They appealed.

Held (28-10-46),-(1) That the evidence against M. J. and K. M. did not establish "common intention" which was essential to render them responsible for the killing.

(2) That the extra judicial statement of Mwezi M. was wrongly excluded and such exclusion was prejudicial to him in the circumstances.

(3) That once a plea of not guilty is entered any admission made by an accused in answer to the charge cannot be considered in derogation of that plea,

(4) That it is generally speaking very unsafe to act upon a dying declaration unless it is satisfactorily corroborated.

Appeals allowed. Convictions set aside.

Rex v. Mughuira and others 10 E. A. C. A. 105:

Appellants absent, unrepresented.

Anjaria, Advocate (Tanganyika), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—There has been a grave misconception in this case by the learned Judge coming to the conclusion that the case of Rex v. Mughuira and Others, 10 E. A. C. A. p. 105 applied to the facts of this case and determined its decision. A reference to that case will

immediately show that the facts on which it was held that a common intention making all the accused responsible for the killing that ensued were quite different from those in the present case.

The judgment in this case, a matter of a few lines, fails to discuss the evidence or to show that there was any consideration whatever of the difficult question of common intention in relation to murder which of course was obviously the main question in the case. The learned Judge seems to have assumed that because a number of persons set out to burgle a house it followed that if the death of the householder took place all those concerned in the burglarious enterprise must be guilty of murder. That is by no means the law. The facts of every such case have to be carefully considered as was done in Mughuira's case both by the trial Judge and the Court of Appeal and the individual responsibility fixed accordingly.

Leaving aside for the moment the question as to whether the third accused Mwezi pleaded guilty to murder, we shall examine the case of Nos. 1 and 2 accused, Mgundulwa and Kasichi. The evidence against those two is that of their respective wives that they admitted having set out on a thieving expedition with Mwezi and, according to Mwezi, four others. There is no evidence that any member of the party was armed and there is no evidence that Nos. 1 and 2 entered the accused's house or that they struck a blow; nor is there any evidence which would justify an inference that they contemplated that any violence would be used. They were not identified by anyone and so far as the evidence goes, they might have run away from the scene before any blows were struck by the individual who struck the old man. We must remember that the party may have consisted of some seven persons. With regard to the deceased naming the third accused Mwezi and another man, he did not identify the other man with Mwezi. So far then as the accused Nos. 1 and 2 are concerned on the evidence in the case they have not been implicated in responsibility for the death and Mughuira's case has not been appreciated by the learned Judge. Nos. 1 and 2 accused must be acquitted.

Turning now to the case of the third accused, it also is not free from difficulty. On being charged he said "I admit it". On that a plea of "Not guilty" was rightly entered, there being ample authority for that being the proper course. During the case his counsel adopted the curious course of apologizing for not asking many questions saying "As one accused pleads guilty though entered as not guilty and the others deny being there I have not much to ask." Our comment here is that by the plea of not guilty entered in his case, he was put on trial, his guilt had to be proved and his admission could not be considered in derogation of that plea. Later in the case, when Mr. Bell, District Commissioner, was called as a witness to prove an extra judicial statement made before him by the third accused, the following note was recorded by the learned Judge:—

"Evidence tendered of a confession made by No. 3 to witness. As No. 3 insists he is guilty and the confession is full of inadmissible statements incriminating others no good purpose is served by putting this in. Accused interposes to say he admits making a confession and that he is certainly guilty. Confession not put in."

The decision of the Judge to exclude the evidence of the statement made to Mr. Bell was definitely wrong and was to the prejudice of the accused for when that statement is looked at it will be found that it nowhere contains an admission of his having struck the deceased. On the contrary it is to the effect that although he admitted taking part in the theft, he did not enter the house. We must point out that because a statement contains inadmissible matter in so far as persons other than the maker are concerned, that is no reason for excluding it in favour of or against the maker. In the judgment it is stated in regard to the third accused "The third man insists on his guilt" and with the other two he was convicted of murder. From the foregoing it is clear that a conviction for murder against him cannot stand. His conviction has proceeded upon the assumption that he admitted unequivocally facts which amounted in law to murder. There is, however, nothing in the record of the proceedings to show that the accused unequivocally admitted either that he struck the fatal blows or that he acted in such a manner as to leave no doubt that he was admitting facts which in law would amount to murder. His statement to Mr. Bell distinctly shows that he alleged that he was not criminally responsible for the death of the deceased. This statement was wrongly excluded from evidence and was therefore not considered. Neither did the trial Judge consider the question of the weight to be attached to the dving declaration of the deceased and as to whether the declaration received any corroboration from any other source. As this Court has had to point out upon more than one occasion, evidence as to dying declarations has to be received with some measure of caution and it is generally speaking very unsafe to act upon such declarations, unless they receive satisfactory corroboration.

As to the statements in the record of the admissions of guilt by the third appellant in the course of the trial it is impossible, reading these admissions in their context to avoid the conclusion that the admissions of guilt had reference to his statement to Mr. Bell and meant no more than that statement contained. It has been referred to as a confession, but it was not by any means a confession of facts constituting murder.

In the circumstances the conviction and sentence of the third accused must be set aside and he must be acquitted.