[1948] EACA 47

# COURT OF APPEAL FOR EASTERN AFRICA

# Before Sir BarcLay Nihill, C. J. (Kenya), Mark-Wilson, Ag. C. J. (Tanganyika), and LLOYD-BLOOD, J. (Tanganyika)

### REX, Respondent (Original Prosecutor)

# NYODE s/o WOPERA, Appellant (Original Accused)

Criminal Appeal No. 215 of 1948

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

Criminal Law-Murder-Defence of intoxication-Uganda Penal Code, Section 14—Manslaughter—Sentence.

The appellant was convicted of murder of a boy aged ten years, by stabbing him. The defence mainly was that the appellant was so intoxicated that he did not know what he was doing and was technically insane, or alternatively that he was so intoxicated as to be unable to form an intention to kill or do grievous harm. The facts appear sufficiently from the judgment below.

Held (25-10-48).—(1) That whilst the requisite degree of proof of insanity in the legal sense was not present, there was evidence on which to find a verdict that the appellant was so drunk as to be incapable of forming the intention to kill or do grievous harm.

(2) That while, under section 14 of the Penal Code, intoxication was to be taken into account in deciding whether the appellant had formed a murderous intention, it was not the only factor to be considered; the complete absence of any quarrel or other motive<br>for the crime, the aimless way the stabbing was done, the lack of any provocation,<br>the fact that a single wound was inflicted on a p as fatally vulnerable and the general conduct of the appellant all led to the definite conclusion that he acted entirely without murderous intention.

Appeal allowed. Conviction of manslaughter substituted. Sentence of two years I. H. L. imposed.

## Appellant absent, unrepresented.

Southworth, Crown Counsel (Tanganyika), for the Crown.

JUDGMENT (delivered by MARK-WILSON, AG. C. J.).—The appellant was convicted by the High Court of Uganda at Mbale of the murder of a boy named Cherop, aged ten years, on the 4th August, 1948, by stabbing him with a knife in the right thigh, causing a wound $3\frac{1}{2}$ inches deep which severed fatally the right main artery of the thigh.

According to the prosecution evidence the fatality occurred about 4 p.m. inside a house where beer drinking had been taking place from about 7 a.m. to 1 p.m. Apparently after the beer was finished a few of the participants stayed on, sheltering from the heavy rain which was falling. The evidence as to what part the appellant took in the drinking is conflicting, as indeed it is on the question of how long the drinking went on, but it seems likely that the appellant did not arrive until the beer party was in its later stages. He was one of those who stayed on after the beer was finished. Then, while sitting in the house with the other guests, the appellant is said to have drawn a knife suddenly from his waistband and, without a word and without getting up, stabbed the boy Cherop, who was sitting near him, with a downward motion in the thigh. The boy collapsed and died and the appellant was seized and tied up and later handed over to the Mutangole Chief, who was called to the scene.

Three questions arose for decision at the trial. The first was whether the appellant had in fact inflicted the fatal wound. The learned Chief Justice and the Assessors found it proved that he had and we see no ground for differing from this finding.

The next point was whether the appellant at the time he stabbed the boy was insane, so as not to be responsible for his act. The Court found against the defence submission on this point and we agree that the requisite degree of proof of insanity in the legal sense was not present.

The only remaining point was whether the appellant at the time he stabbed. the boy had formed any intention to kill or to do grievous harm to any person. Under section 14 (4) of the Uganda Penal Code it is laid down that: -

"Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise. in the absence of which he would not be guilty of the offence".

The defence alleged that the appellant was so far gone in drink that he was incapable of forming, and did not form, any murderous intention.

The learned Chief Justice dealt with this submission in his judgment in thefollowing terms: -

"There remains to consider whether the accused was so drunk as to be incapable of forming the intention of committing murder or of doing grievous. harm. In my judgment, in view of the prosecution evidence and the completefailure of the defence to show that the accused was very drunk, I must hold that this alternative defence fails. I realize that the prosecution witnesses may not have been telling strictly the truth when they say that no one at the beer party was drunk and that the accused told the police that he was very drunk. Nevertheless, I feel that there must be some evidence however little—on which to found a verdict that the accused was so drunk as to be incapable of forming the intention to kill or to do grievous harm. I can find no such evidence".

After very full consideration of all the evidence in the case including the accused's statements to the police, to the committing court and to the trial court,. we have with great respect come to the conclusion that there was in fact evidence in the case on which such a verdict as that referred to by the learned Chief Justice at the end of the passage quoted above could have been arrived at, and that the finding actually made by the trial Court on the existence of murderous. intention is contrary to the weight of the evidence in the case and cannot be upheld.

The prosecution evidence which the trial Court accepted shows that there was no quarrel of any sort between the appellant and any other member of the party, including the deceased boy. No provocation, either by act or insult, had been offered to him by anyone. The prosecution case, in fact, is that the appellant. in an entirely peaceful gathering in which even the drinking of beer had ceased, suddenly drew his knife and stabbed the youngest and most inoffensive member of the party, the son of his friend, a mere child with whom he could have no possible cause of quarrel. Such an act appears to us to be completely inexplicable on the basis of the prosecution evidence as to the appellant's state of intoxication. but entirely comprehensible if the defence evidence is believed. From first to last in his three statements which are in evidence the appellant claimed to have been very drunk, so drunk, as to have fallen asleep at one stage of the proceedings. It is true that the prosecution witnesses declined to admit that the appellant was drunk at all. But the learned Chief Justice repeatedly stated that he did not accept that part of their evidence which deals with the beer drinking as the strict truth. In the passage from his judgment quoted above he said:—

"I realize that the prosecution witnesses may not have been telling strictly the truth when they said that no one at the beer party was drunk and that the accused was not drunk".

Earlier in the judgment he said: $-$

"I also believe that these three persons (Yokana, Ndiwa and Loda) told a substantially true statement, although they may have prevaricated somewhat when they denied that the accused had drunk any beer at the beer party".

At another place he says: $-$

"I doubt whether Loda's evidence can be relied on as to . . . the amount (little or great) of beer consumed. I think that probably more beer was consumed than she alleges and that the party were more drunk than she alleges".

On our examination of the evidence as recorded we share the learned Chief Justice's lack of belief in the truthfulness of the prosecution witnesses in so far as it refers to the drinking at the beer party. It is entirely in keeping with the curious reluctance of many African witnesses to admit that anyone ever gets drunk at a beer party, no matter how long it lasts. We feel that the appellant's repeated assertions that he was very drunk are much more in accordance with the proved facts of the case, and indeed with the findings of the learned Chief Justice on the subject of the drinking at the party as quoted above, than is the denial of the prosecution witnesses that he had reached any significant degree of intoxication.

The learned Chief Justice seems to have misdirected himself on one important point. He accepted the evidence of the Mutongole Chief, Erisa Siwa, as confirming the fact that the appellant was not drunk on the evening of the crime. Erisa, it is true, said that when he arrested the appellant "he was not smelling of beer". But it seems to have been overlooked that the arrest, according to Erisa's evidence both at the preliminary inquiry and at the trial, took place on the 5th August, while the stabbing according to all the available evidence (and the information) took place on the 4th August. We assume that the record in this respect is correct and it is not unreasonable to think that, as the stabbing took place late in the day, it was not until the next morning that the Chief came to arrest the appellant, who had been tied up and detained by the other members of the party after he had stabbed the boy. Clearly if, as seems to be the case, the Chief was talking of the following morning his evidence that the appellant was not smelling of beer has no corroborative value and should not have been taken into account against the appellant.

Finally, we wish to point out that while, under section 14, intoxication is to be taken into account in deciding whether the appellant had formed a murderous intention, it is not the only factor which should be considered. The complete absence of any quarrel or other motive for the crime; the rather aimless way in which the stabbing was done; the lack of any provocation; the fact that a single wound was inflicted on a part of the body which is not usually regarded as fatally vulnerable; the general conduct of the appellant, including his curious fit of snorting or grunting immediately after he had inflicted the injury; all these things lead us to the definite conclusion that he acted as he did entirely without murderous intention. His action was due in all probability, as he himself asserted throughout, to his having consumed an excessive amount of drink. No inquiry seems to have been made at the trial as to whether the accused already had taken drink when he arrived at the beer party and his own statements are inconclusive on this point. But we feel that the only reasonable conclusion that can be drawn from the evidence as a whole is that appellant, when he stabbed the boy Cherop, had not formed an intention to kill or to cause grievous harm and in the absence of such intention he should not have been found guilty of murder.

We accordingly allow the appeal, set aside the conviction and sentence for murder and substitute a conviction for manslaughter. In view of the circumstances in which we have found the killing was committed, namely, that it was the result of an aimless blow delivered by the appellant in his befuddled drunken state, without intention to kill or cause grievous harm, we think a comparatively light sentence will suffice. We sentence the accused to serve two (2) years' I. H. L.