[1947] EACA 34

### COURT OF APPEAL FOR EASTERN AFRICA

## Before NIHILL, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika) and EDWARDS, C. J. (Uganda)

### REX, Respondent (Original Prosecutor)

# (1) SELEMANI s/o NGULU, (2) MALESA s/o BWANARI, Appellants (Original Accused)

#### Criminal Appeals Nos. 134 and 135 of 1947

### (Appeals from decision of H. M. High Court of Tanganyika)

Criminal law—Murder—Burglary by two persons—One of them kills householder -Responsibility of the other.

In the course of a burglary in the house of the deceased by the appellants who were unarmed, the appellant 1 seized the deceased's own bow and arrows and fired two arrows at him inflicting injuries, from which he died on the following day.

Both appellants were convicted of murder, the learned Judge holding that when people did the felonious act of burglary together and one killed both were liable to be convicted of murder.

The appellants appealed.

Held (30-7-47).—That to say that when people do the felonious act of burglary together and one kills both are liable to be convicted of murder is too broad a statement of the law.

Appeal of appellant 1 dismissed.

Appeal of appellant 2 allowed.

Appellants absent, unrepresented.

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

JUDGMENT (delivered by EDWARDS, C. J.).-The appellants were both convicted of murder and sentenced to death by the High Court of Tanganyika Territory. The facts as found by the trial Court are that on the night of . 2nd-3rd March, 1947, both the appellants broke into the house of one Bakari s/o Nyange. On Bakari waking up, the first appellant seized Bakari's own bow and arrows and fired two arrows at Bakari, in consequence of which the latter received wounds on the chest and thigh. As a result of the chest wound Bakari suffered from shock and hæmorrhage from which he died at 5.30 p.m. on<br>4th March. The evidence against the first appellant was that of Bakari's wife, Malusu, and his ten-year-old son, Kichiku, who were eye-witnesses, and a dying declaration made by Bakari on 3rd March before Mr. Baker, a Third Class Magistrate, and repeated by Bakari in presence of both appellants on 4th March. The first appellant, who was given an opportunity of cross-examining Bakari, said that he did not wish to ask him any questions. The second appellant asked Bakari what he saw him (the second appellant) doing in his house, to which Bakari replied, "I saw you with my clothes in your hands". Malusu stated in evidence that the first appellant is a nephew, on his mother's side, of Bakari, while the second appellant is a nephew of the first appellant. The prosecution also called as a witness a woman, Mwafani binti Sefu, who deposed to finding Bakari lying with arrows in him. Bakari told Mwafani that he had been shot by both the appellants. The first appellant is the uncle of Mwafani's husband.

We think that there was ample evidence to justify the conviction of the first appellant, whose appeal is dismissed. As regards the second appellant, the learned trial Judge, in his judgment, said. "When people do the felonious act of burglary together and one kills" both are liable to be convicted of murder. We think that this is too broad a statement of the law. It is quite clear that both appellants, when they set out on this burglary, were unarmed and that it was not till Bakari woke up in his own house that the first appellant went and got Bakari's bow and arrows. We think that, had the second appellant when setting out in company of the first appellant to commit burglary, seen the first appellant armed, he (the second appellant) might well have changed his mind and "cried off" and said, "I am not coming if you are going like this". We hold that the conviction of the second appellant for murder cannot stand and must be and hereby is quashed, and we order him to be set at liberty.