[1943] EACA 11

### COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda) and MARK WILSON, Ag. C. J. (Tanganyika)

REX. Respondent (Original Prosecutor) $\mathbf{v}$

# PENGAUNUSU s/o MWENDAGUMO alias PANDAUNUSU s/o MUSIFWALA, Appellant (Original Accused) Criminal Appeal No. 185 of 1942

#### Appeal from decision of H. M. High Court of Tanganyika

Criminal Law—Murder—Intoxication—Formation of intent—Section 14 (4) Penal Code.

The accused was convicted of murder by shooting with an arrow and the question arose of intoxication as bearing on the formation of intent (Section 14 (4) Penal Code).

Held $(25-1-43)$ .—(1) Where the question arises as to the effect of intoxication on the intention of an accused, each case has to be considered on its own facts.

(2) Whilst the inference of a murderous intention flows more readily in a case where a deadly weapon is used and still more readily where in addition a motive has been<br>established, the mere fact of the use of a deadly weapon may not in every case be conclusive.

Dictum of Alderson, B., in *Meakin's* case (7 C, and P, 297) approved.

The appeal was dismissed.

Appellant absent, unrepresented.

#### Stacey, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.)—The accused undoubtedly killed the deceased by shooting him with an arrow. Although the accused does not admit it, there can be little doubt that the motive for the murder was that the deceased had made advances to a woman Ndeu whom the accused by native custom would have inherited as the widow of his brother, subject to this very important condition that she was willing to go to her brother-in-law, and this she was not prepared to do. From the circumstances of the killing there can in our opinion be no reasonable doubt that the case is one of murder, even though the accused was to some extent under the influence of drink. The learned trial Judge considered the question of intoxication as bearing on the formation of intent (Section 14 (4) Penal Code). He said in the judgment: "Accused admits he was quite sober at 3 p.m. He claims that he had a drink with Hassani, from whom he borrowed the bow and again, later, at a relative's. But there is no evidence at all that he consumed such a quantity of *pombe* either at Hassani's or at this relative's place as to enable him to avail himself of any defence of intoxication". Actually the accused in his evidence claimed to have drunk pombe at five (not two) separate places and times on the day in question. But even taking this into account we agree with the learned trial Judge that the evidence before the Court as to the quantity of drink consumed and its effect on the accused was inadequate to establish that accused was so drunk as not to have formed a murderous intention, taking into account all the circumstances of this case. In saying this we are particularly impressed by what the accused himself said in his evidence: "I wanted to inherit Ndeu, but dropped the idea when she refused. Deceased's death would have made no difference to my getting Ndeu for myself. I did not kill him out of revenge, but because I was annoyed, aided by drink".

It is not necessary for us to envisage cases where drink can come to the assistance of an accused person who kills another with a deadly weapon such as a spear, knife, or, as happened in this case, an arrow. Every case has of course to be considered on its own facts, and while we say with Baron Alderson in *Meakin's* case (7 C. & P. 297) that the inference of a murderous intention flows more readily in a case where a deadly weapon is used and, we would add, still more readily where in addition a motive has been established, the mere fact of the use of a deadly weapon may not in every case be conclusive. The appeal is dismissed.