[1948] EACA 33

### COURT OF APPEAL FOR EASTERN AFRICA

# Before SIR BARCLAY NIHILL, C. J. (Kenya), EDWARDS, C. J. (Uganda), and SIR JOHN GRAY, C. J. (Zanzibar)

## REX, Respondent (Original Prosecutor)

#### LUSERU WANDERA s/o WANDERA, Appellant (Original Accused)

### Criminal Appeal No: 121 of 1948

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

Criminal Law—Uganda Penal Code sections 208 (1), 220 (1) and 226 (1)— Distinction between "attempting unlawfully to cause death" and "attempt to murder"—Reasonable doubt—Provocation—Sentence.

The appellant, in a truculent mood, went to fetch his wife from the house -of her step-mother where she had stayed the night, and as she declined to leave, he struck her. The case for the Crown was that immediately after this, without provocation, he stabbed a woman named Dorosiya in the neck with his knife, but there was also evidence that on slapping his wife the appellant was seized by four other persons who began to beat him.

The appellant was convicted of attempting unlawfully to cause death (section 208 (1) Penal Code), unlawful wounding with intent to do grievous harm (section 220 (1)), and unlawful wounding (section 226 (1)), and was sentenced to ten years' imprisonment with hard labour on each of the first two counts, and to three years on the third count, all sentences being concurrent.

#### On appeal.

Held (6-8-48).-(1) That in a prosecution under section 208 of the Penal Code it is not sufficient to prove that the offence would have been murder if death had ensued; it must be shown that the accused had a positive intention unlawfully to cause death.

R. v. Gwempazi s/o Mukonzho, 10 E. A. C. A. 101 followed.

(2) (a) That under the Penal Code, unlawfully causing death by an act done with intention to cause death need not necessarily be murder; notwithstanding the positive intention to kill, it may be done in circumstances of extenuation which reduce the offence to manslaughter or infanticide.

(b) But if death does not ensue, by reason of his intent to kill, an accused is guilty of an attempt unlawfully to cause death contrary to section 208 (1) of the Penal Code.

(c) That the existence of provocation will not operate to bar a conviction under section 208 (1) provided it is proved that the accused had an intent unlawfully to cause death.

(3) That on the facts as found by the learned trial Judge there was considerable doubt as to whether the appellant had used the knife with the positive intent to cause death.

Conviction under section 208 (1) quashed and sentence set aside.

(4) That the evidence disclosed sufficient provocation to be urged in mitigation of the -sentence under section 220 (1) of the Penal Code.

Sentence in respect of the conviction under section 220 (1) reduced to five years' imprisonment with hard labour.

It is pointed out by their Lordships that the marginal note to section 208 of the Penal Code which is "Attempt to murder" is misleading and forms no part of the -enactment.

Claydon v. Green (1868), L. R. 3 C. P. 64 referred to.

Appellant absent, unrepresented.

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

JUDGMENT (delivered by SIR JOHN GRAY, C. J.).—The appellant was tried upon an information containing three counts which alleged offences under sections 208 (1), 220 (1) and 226 (1), respectively of the Uganda Penal Code. The first count alleges that he "attempted unlawfully to cause death of Dorosiya". The second alleges that he unlawfully wounded Dorosiya with intent to do some grievous harm to the said "Dorosiya" and the third alleges that he "unlawfully wounded" the woman He has been convicted on all three counts and sentenced to ten years' imprisonment on each of the first two counts and to three years' on the third count, all three such sentences being concurrent.

The evidence shows that the prosecutrix received a stab wound on the right side of the neck, which only just missed the jugular vein but very fortunately had no fatal consequences. The evidence of the prosecutrix, which is borne out by that of three other witnesses, is that the appellant came to the house in which she was to fetch his wife and that, as this latter declined to leave the house, he hit her and that, almost immediately after hitting his wife, the appellant turned on the prosecutrix and stabbed her in the neck with a knife. The appellant denied that it was he who inflicted the wound, but the learned trial Judge and the assessors held that it was he who stabbed the prosecutrix. On the evidence before them they were clearly justified in so holding.

At the same time the learned trial Judge has held that appellant inflicted the injury in the course of a scuffle which followed upon his hitting his own wife. The wife herself says that there was such a scuffle and that Dorosiya and others. present caught hold of the appellant and started beating him. Her evidence receives corroboration from the Assistant Medical Officer at Masindi, who deposesto the appellant having the marks of some minor injuries.

In his judgment the learned trial Judge proceeds as follows: —

I think it probable that there was a scuffle after the accused slapped his wife; the others would surely intervene. Moreover, the accused had clearly provoked their quite proper intervention and I agree with the Assessor's opinion that his act was malicious.

I find some difficulty in distinguishing 'attempt to murder' from: 'wounding with intent to cause grievous bodily harm'. This latter intent, by our Code, amounts to murderous malice-section 196-on the facts of this: case, inflicting dangerous wound with blunt weapon without considerableprovocation—I convict accused on all counts".

As explained by this Court in R. v. Gwempazi (1943), 10 E. A. C. A. 101, and attempt to commit an offence implies a specific intention to commit that offence. Section 374 of the Uganda Penal Code says that:—

"When a person, intending to commit an offence, begins to put his. intention into execution by means adapted to its fulfilment and manifests. his intention by some overt act, but does not fulfil his intention to such extent. as to commit the offence, he is deemed to attempt to commit such offence".

Therefore, on a charge of attempting unlawfully to cause death contrary to section 208 (1) of the Code it is not sufficient to prove that the offence would have been murder, if death had ensued. It must be shown that the accused person. had a positive intention unlawfully to cause death. An intent merely to cause grievous harm, whilst sufficient to support a conviction for murder, is not sufficient to support a conviction under section 208 (1) of the Code for attemptingunlawfully to cause death. As said, a conviction for this latter offence can only be supported by proof of a positive intention unlawfully to cause death.

With respect to the learned trial Judge's finding on the question of provocation, we think it desirable to point out that the marginal note to section 208 of the Uganda Penal Code is misleading and that the law in East Africa on the subject of attempted homicide differs from the law on that subject in England. In England the relevant law on the subject is contained in sections 11-15 of the Offences against the Person Act, 1861, but, as reference to those section shows, each one of them uses the word "murder". It is true that the marginal note to section 208 of the Uganda Code speaks of "attempt to murder", but that marginal note forms no part of the enactment. (Claydon v. Green (1868), L. R. 3, C. P. 64.) The section itself deals with "attempts unlawfully to cause death" and acts done or commissions made "with intent unlawfully to cause death". By way of contrast, the very next section deals with the case of the convict who "attempts to commit murder".

As the Penal Code shows, unlawfully causing death by an act done with intention to cause death need not necessarily be murder. Notwithstanding the positive intention to kill, it may be done in circumstances of extenuation which reduce the offence to manslaughter or infanticide. Thus, a man may assault another with the deliberate intention of killing him but in such circumstances of provocation as would reduce the offence to manslaughter, if death ensued. But if death does not ensue, by reason of his intent to kill he is guilty of an attempt unlawfully to cause death and therefore of an offence under section 208 (1) of the Uganda Penal Code. The presence or absence of circumstances showing provocation is undoubtedly a proper matter to be considered when it comes to passing sentence after a conviction under section 208 of the Code, but the existence of provocation will not operate to bar a conviction under that section provided that it is proved that the accused person had an intent unlawfully to cause death.

The question to be decided in this appeal, in so far as it affects conviction, is therefore as to whether the facts as found by the learned trial Judge are sufficient to prove the intent unlawfully to cause death which is a necessary ingredient of the offence punishable under section 208 (1) of the Penal Code. The evidence of the appellant's wife is that, after the appellant had slapped her, he was seized hold of by four persons (including the prosecutrix) who started to beat him. In the circumstances it may well be that the appellant struck out wildly with his knife without any specific intent to kill or even to strike at any vital part of the body of any one of his assailants. He is entitled to the benefit of any reasonable doubt in this respect and we feel that there must be considerable doubt as to whether he used the knife with the positive intent to cause death. In the circumstances the conviction and sentence under section 208 (1) of the Penal Code must be set aside.

On the other hand, we are entitled to presume that the appellant knew and intended the natural and probable results of an assault committed by him with a knife and that those results were likely as in the present case, to be the causing of grievous harm. The conviction under section 220 (1) of the Code wounding with intent to cause grievous harm will therefore stand.

With regard to the sentence on this count, no doubt the occupants of the house (including the prosecutrix) were entitled to use a certain measure of force to evict the appellant as a trespasser after he had slapped his wife, but they were not entitled to use more force than was reasonably necessary for that purpose. If they used excessive force for this purpose, they were criminally responsible for the excess of force used by them (Penal Code section 229) and the appellant in his turn was himself entitled to use reasonable force to defend himself against their assault, but he was of course criminally responsible for the use of excessive force in the exercise of his right of self defence. Here there is nothing to show that the prosecutrix and other occupants of the house were justified in going to the length of beating the appellant, but at the same time there is also nothing to show that their assault upon him was of such a nature as to justify the use of a knife in repelling that assault.

For reasons already given, it is not necessary to consider whether the wrongful act of the occupants of the house amounted to legal provocation as defined in section 199 of the Penal Code. In considering sentence it is enough for us that the evidence discloses provocation—in the dictionary sense of that word—sufficient to be urged in mitigation of sentence. We accordingly alter the sentence for wounding with intent to cause grievous harm to one of five years' imprisonment with hard labour to date from conviction.

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