[1940] EACA 27

## COURT OF APPEAL FOR EASTERN AFRICA

BEFORE SIR JOSEPH SHERIDAN, C. J. (KENYA), WHITLEY, C. J. (UGANDA) AND LUCIE-SMITH, J. (KENYA)

## REX, Respondent

$\mathbf{v}$

## OKECHA S/O OLILIA, Appellant Criminal Appeal No. 168 of 1940

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

Criminal Law—Murder—Evidence—Corroboration of evidence of child of tender years—Antecedent corroboration.

Appellant appealed from a conviction of murder of a girl Nyafwono d/o Okuga. Appellant's son Obothi a child of tender years was an eye-witness and his unsworn statement described how appellant had killed the deceased. Another eye-witness Jewo gave evidence consistent with Obothi's statement but he was regarded by the trial judge as an accomplice. The trial judge accepted Obothi's statement as true but found that it was corroborated by evidence which did not implicate the appellant though it did show that Obothi's statement as to the method employed in the killing and disposal of the body was correct. In addition the trial judge found further corroboration of Obothi's statement in the fact that the previous week the appellant had threatened the deceased on account of cattle trespassing.

Held (20-11-40).—That the conviction was correct and that the evidence of the previous threat being an expression of intention went beyond mere motive and tended to connect the appellant with the killing.

Cole v. Manning (2 Q. B. D. 611), Wilcox v. Gotfrey (26 L. T. 481) and Lord Reading's dictum in R. v. Baskerville 1916 2 K. B. at p. 665 applied.

Appellant absent, unrepresented.

Spurling, Crown Counsel, for the Crown.

JUDGMENT (delivered by Whitley, C. J.).—The only difficulty in this case is whether or not there was corroboration of the evidence of the child Obothi, who was not sworn, in material particulars affecting the appellant. The learned trial judge was strongly impressed by the way this child gave his evidence and believed him but he rightly directed himself that it would be unsafe to convict without corroboration. He did not expressly direct himself that any corroboration must be such as to implicate the appellant in material particulars and he found corroboration *inter alia*—certain pieces of evidence which cannot be said necessarily to implicate the appellant at all. But one piece of corroborative evidence which he finds does definitely tend to connect the appellant with the crime and we are satisfied that the conviction was rightly had. In addition to the evidence of Obothi, who was an eye-witness of the killing and the evidence of Jewo whom, the learned judge regarded as an accomplice, there was the evidence of the deceased girl's mother Abo as to the accused having, the previous week, threatened the girl on account of cattle trespassing. This evidence, we think, the judge was justified in accepting as corroboration. Being a statement of intention it goes beyond mere motive and does tend to connect the appellant with the killing of the girl. Furthermore it is entirely consistent with Obothi's evidence that shortly before strangling the girl the appellant said to her "You" often allow your goats to stray on my cotton plot and to-day you are doing<br>the same thing on my potato patch; I shall kill you to-day". It is true that this is evidence of something antecedent to the crime but the case of $Cole$ $v$ .

Manning 2 Q. B. D. 611 is authority for the proposition that antecedent corroboration may be good in law. Wilcox v. Gotfrey 26 L. T. 481 affords further authority on that point. As Lord Reading observed in R. v. Baskerville L. R. 1916, 2 K. B. D. at p. 665—"What is required is some additional evidence rendering it probable that the story of the accomplice (or in this case it would be child) is true and that it is reasonably safe to act upon it". It must, as he goes on to say, be independent testimony which affects the accused by connecting or tending to connect him with the crime.

The learned trial judge also warned the assessors that Jewo's evidence required corroboration, he being to some extent at least an accomplice. We agree that Abo's evidence as to the prior threat may also be regarded as corroborating him.

Considering the evidence as a whole it supports the conviction. The appeal is dismissed.