R v Kafungwa (Criminal Review Case 231 of 1939) [1939] ZMHCNR 8 (31 December 1939)

60 Vol. II] R. v. KAFUNGWA. Crim inal R eview Case N o. 231 o f 1939. Criminal Procedure Code sections 187 (2) and 210— summary adjudication— answer o f accused should be recorded as nearly as possible. In the judgment hereunder is set out the procedure which should be adopted when a person is accused o f murder and, before the preliminary inquiry is completed it is found necessary to alter the It also sets out the correct m ethod o f recording that the charge. Magistrate intends dealing with a case summarily instead o f com mitting a person for trial. An indication is given o f how a Magis­ trate should take and record the plea o f an accused person. At the time when this case was heard the offence o f manslaughter was triable by Subordinate Courts, Class I, II and III. Now persons accused o f this offence must be com m itted for trial by the High Court. See also R. v. Kasonde p. 14 ante and R. v. Changala and Two Others p. 30 ante. R obinson, A . C . J .: Please thank the M agistrate for sending me the above case for review. The Magistrate has reached the right conclusion and I think the second paragraph o f section 15 Penal Code is ample authority for the acquittal o f the accused child, who is only 10 years old, apart from, and as well as, the reasons given b y the Magistrate. My only criticism o f the record, which is adm irably clear, is that when the formal discharge on the charge o f m urder was entered, it would have been better if the Magistrate had m ade a note, e.g., “ all the facts are I now propose charging the accused with manslaughter before the Court. and, under the circumstances, intend finally to determ ine the matter m yself under section 210 Criminal Procedure Code ” . The charge sheet then would be put in and the plea taken. The plea, which always should be recorded as nearly as possible in the accused’s ow n w ords (section 187 (2) Criminal Procedure Code), should probably have read “ Yes—I admit I hit him and he died It is then for the Court to construe the meaning o f that and in this case it probably would have entered a plea o f Not I t would then be noted that the Crown evidence is as already Guilty recorded in the depositions and the witnesses should be offered for cross- examination, as they had not already been cross-exam ined (proviso to section 210 Criminal Procedure Code). The rest is in order. I am very glad the Magistrate sent the case in because, although there is nothing radically wrong, the entry in the m onthly return of “ Plea: G uilty; Judgm ent: N ot G u i l t y ” , could n ot have passed un­ noticed. [Vol. II Speaking generally on the question o f pleas, it is usually essential for the Court to have some knowledge o f the Crown story before it is in a position to charge the accused. Having got the facts, the Magistrate can then ask the accused, “ Is it true you broke the latch o f a hut in the If middle o f the night and stole that blanket ? ” (produced in Court). he admits it, it can then be recorded, " Yes, I admit this. I broke the latch and pulled the door open and stole that blanket. It was the middle o f the night The Court can then unhesitatingly enter a plea o f guilty after the words in inverted commas. I f he says “ It is true I went in and stole the blanket but the door was wide open. The sun was just rising ” , the plea would be not guilty (if the charge was burglary) and, moreover, the Court can then help the accused in his defence.