[1935] EACA 133

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Kenya); ABRAHAMS, C. J. (Tanganyika); and FRETZ, Ag. C. J. (Zanzibar).

REX, Respondent (Original Prosecutor)

GWANGIRE s/o SINYANGWIRE. Appellant (Original Accused).

Criminal Appeal No. 109/1935.

Criminal Law—Murder—Malice aforethought—Intention to cause dangerous harm.

The appellant struck the deceased with a spear on the forehead, the wound healed but some infection was introduced which caused an abscess on the brain of which the deceased died.

Held (28-10-35).—That as the appellant must have known that to strike a man on the head with a spear was a dangerous act, even if he did not intend to kill he either intended to cause dangerous harm or was indifferent as to the result of his act, and was therefore rightly convicted of murder.

Appellant absent unrepresented.

Vaughan for Crown.

JUDGMENT.-It is beyond doubt that the appellant jabbed the deceased on the forehead with a spear, that the skull of the deceased was fractured and that though the wound to outward appearances had healed some infection had been introduced which caused an abscess on the brain leading to death. There is no reason to believe that the infection was occasioned by improper treatment of the wound, and it would appear that in all probability some bacteria were conveyed into the deceased's skull by the spear itself and therefore the appellant must be held legally responsible for the death.

It remains to consider whether the appellant acted with malice aforethought when he struck—that is to say whether he intended to kill or to cause dangerous harm to the deceased.

The medical evidence discloses that the blow might have been a light one and that but for the supervening sepsis death might not have resulted. The appellant however seems to have acted with deliberation. A short time previously he had violently assaulted the deceased and then came to the house of deceased carrying two spears with one of which he jabbed the forehead of the deceased who was in a sitting position. The appellant must have known that to strike a man on the head with the point of a spear was a dangerous act and even if he did not intend to kill he intended to cause dangerous harm or was indifferent as to the result of his act, which comes to the same thing. We are of the opinion that the conviction for murder was in the circumstances quite proper and we dismiss the appeal.