[1936] EACA 129

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Kenya); HEARNE, BATES and KNIGHT-BRUCE, JJ. (Tanganyika).

## REX, Respondent (Original Prosecutor)

1. KIMBUGWE S/O NYOGOLI; 2, LEUBENI LEJI S/O KAWIISO; 3, OMULAMU S/ MALINGA; 4, MUGWERE S/O KONDOLE, and 5, OPIO S/O MUWANIKA, Appellants (Original Accused).

Cr. A. Nos. 157-161 of 1936.

Murder-Manslaughter-Cause of death-Common intention-Intent.

The first appellant having seriously assaulted, with a stick, a man outside the hut in which the other appellants were drinking, so informed the other appellants who left the hut together and assaulted the injured man, who died as a result of the injuries he received. The first appellant did not incite or take part in the second assault. The full facts of the case appear from the judgment.

- Held (14-11-36).—That as it could not be proved that the injuries caused by the assault of the first appellant were sufficient to cause death and as there was no evidence of common intention on the part of the first appellant with the other appellants in the second assault, the first appellant should not be convicted of manslaughter or murder. - Held Further.—That the other appellants, by assaulting an injured<br>man, must, whatever the extent of his injuries, have caused his death in the sense that they hastened it, and are guilty of manslaughter at least. - Held Further.—That in view of the uncertainty of the condition of<br>the deceased at the time of the second assault and the nature and extent of that assault, it would not be safe to hold that these appellants had a common intention to cause death or grievous harm and the correct conviction against them is one of manslaughter. Rex v. Maclin, Murphy and others (2 Lewin 225) considered.

Appellants, absent, unrepresented.

Branigan, Crown Counsel (Tanganyika), for Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).-The five appellants have been convicted of murder by the High Court of Uganda. The case presents some difficulty principally on the question whether there existed a common intention on the part of all the five appellants making them responsible in law for the death of the deceased. On the facts of the case. the first appellant was the first person to beat the deceased and.

it would be impossible to say what would be inflicted. There is ground for supposing that the beating was severe and with a $_{\rm stick}$ The act of the first appellant was completed before the other four appellants had any knowledge of the presence of the deceased outside the hut in which they had been drinking beer. so there can have been no common intention at that time. Does what happened subsequently sufficiently connect the first appellant with what the other four did to show that all the five had a common intention in the further beating of the deceased? No. One returned to the hut and announced that he had beaten a man and thereupon the four others, who were not armed even with sticks left the hut and took part in assaulting the deceased. In this assault the first appellant took no part. Was his conduct such as to identify him with and make him responsible for what followed? Because he had beaten the man earlier does not decide the question against him. To render him liable in this case, his actions in connection with the second beating must be studied. The mere announcement that he had beaten a man with the possible result that it inspired the others to do likewise does not afford the necessary nexus. There is evidence that he left the hut for the second time after the others but as to what he did thereafter does not appear. One thing, however, is certain and that is that he did not take part in the beating; nor is there evidence so associating him with what the others did that he can be said to have formed a common intention with them making him responsible for what they did. On a fair appraisement of the evidence, some of which is contradictory, his association with the deceased must be held to have ended on his return to the hut. As to the nature of the first assault, except that it was with a stick, we cannot say with certainty. It was likely a severe one, but assuming that against the first appellant can it be said that he caused injuries which resulted in death? It is not possible to say on the evidence what were the injuries he caused. Suppose that he had fractured the ribs, it would not be possible to say that his doing so caused death. The doctor at the conclusion of his evidence said that in his opinion death was the result of severe internal haemorrhage caused by lacerated spleen and liver and in considering the case against the first appellant the spleen and liver wounds for all we know may have been caused during the second assault; one cannot say and one is not entitled So far then as the first appellant is concerned to speculate. common intention not having been proved and it not having been proved that he caused the injuries which caused death he must be acquitted of murder. Regarding the other four appellants the position is different. They at least can and must be said to have assaulted a man, who was already injured and whatever the nature of his injuries, they must be held to have caused his death in the sense that they hastened it. They are in the circumstances guilty of manslaughter at least. Are they guilty of

murder $?$ The evidence is such that not being able to say in which assault, the spleen and liver wounds were received, the fact that it was night when they would be at a disadvantage in appreciating the condition of the injured man, the fact that this disadvantage would be greater by reason of the drink they had taken, the fact that they were not armed—not even with sticks and always assuming as one must in considering the case against them that the spleen and liver wounds may have been caused during the first assault, it would not be safe in our opinion to hold that they had a common intention to cause death or grievous harm. The case, which has exercised us a great deal and in which we have had every assistance from Mr. Branigan, is as regards the inference to be drawn against the appellants in some respects similar to the case of Macklin, Murphy and others (2) Lewin 225). In that case, the headnote reads, "If several persons act together with a common intent every act done by each of them in furtherance of the interest is done by all. If a deadly weapon be used an intention to kill is to be inferred-not so from a blow with a fist. From continued violence after much beating, an intention to kill may be inferred". In the present case, we have so little evidence and that not satisfactory as to what the condition of the deceased was when the four appellants came on the scene (the fact that he was lying on his side and groaning we have considered) and so little evidence as to the extent of the assault, we are forced to the conclusion that the correct finding is one of manslaughter. The first appellant, Kimbugwe s/o Nyogoli is acquitted and the other four appellants found guilty of manslaughter and sentenced to five years hard labour.