Division: IN THE COURT OF APPEAL
Date: 5TH OCTOBER, 1959.
Before: VAN LARE J.A. AS C.J., GRANVILLE SHARP J.A. AND OLLENNU J.
In this case of homicide, tried on indictment for murder, the prosecution had no evidence concerning the circumstances of the killing save for the deposition of a companion of the deceased, and for the statements made to the police by the three persons charged, who were Azalga Kusasi, Azabugu Kusasi and Azobide Kusasi.
At their trial the three men elected not to give evidence, but relied on the statements which they had made to the police, and which may be summarised as follows: Azalga said he was awakened at night by loud shouts of “Thieves, Thieves, catch them.” He went out of his house with a cudgel, found Azabugu and Azubide already running towards the main road, and joined them. The other two accused said in their statements that Azalga had come to their houses and had awakened them to ask their assistance. Azabugu stated that Azalga said he had seen some thieves in the village.
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Arrived at the main road (the village is just off that road) they saw two men with a lantern proceeding along it. According to Azobide, “Azalga told us they were the thieves.” Azalga and Azabugu said the two were running, Azobide said the two were walking until the three (who had been joined by a fourth, all with cudgels) ran towards them; the chase continued for 50 or 100 yards.
The four surrounded the two. The man with the lantern dropped it, and made for the bush. The other stood his ground, and protested that he was not a thief; he warned them to stand back, because he would defend himself with his knife, and he “scratched his knife on the ground”-it was very dark, and the type of knife could not be seen. They threw stones at him, then their cudgels, until he fell; he tried to get up, but they struck him down again. There were further blows as he lay on the ground, and within five minutes he was dead (the cause of death was later found to be multiple fractures). Azobide claimed to have done no more than throw his cudgel, and said that after observing various blows by the others while the man lay on the ground, “as I saw the man was dying, I ran back about 20 yards away.”
On the advice of the Chief, the body was buried secretly and all surface traces of the grave were obliterated, and on similar advice all concerned were warned by the accused persons “to keep their mouths shut” and “to be ignorant of the case.” It was not until 13 days later that they were arrested.
The deceased’s companion, who had escaped and whose complaint to the police brought the homicide to light, gave evidence on oath at the Preliminary Enquiry, but at the trial the prosecution stated, “This witness is at Bawku, and we have omitted to summon him.” Leave was given to read his deposition. He described how he and his brother-in-law (the deceased), returning home from a distant visit, were walking along the main road, with a lighted lantern. As they were passing the village they encountered some men who asserted that they (the travellers) were thieves. They protested their innocence, but some one shouted, “kill them, they are thieves.” The deceased was assaulted and fell down: the deponent ran, fell into a gutter and dropped his lantern. He got up, ran on, climbed a tree and stayed there till morning. He twice went to the Chief, then to the Police.
All three men were convicted of murder before Murphy J., sitting with assessors, at the Assizes holden at Tamale on the 4th May, 1959. The learned Judge remarked, “There is no evidence of provocation, nor can it be said that the killing was in any way justified.” The three men appealed to the Court of Appeal (Criminal Appeal No. 57/1919).
Sec. 61 (1) of the Criminal Code provides that “any person may . . . without warrant . . . arrest . . . another person who has committed a felony . . . “The subsection goes on to provide for the use of extreme force, if necessary, upon the person who has committed a felony if the latter resists or escapes, provided that the person who has committed a felony has notice (or believes) that he is accused of felony. In the instant case there was no evidence that any felony had in fact been committed, whether by the deceased or at all.
Arrest and the use of force when no felony has been in fact committed are covered by sec. 61 (2) if the user of force has been “authorised by warrant or other legal process to arrest.” There was no warrant in this case.
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COUNSEL
Moore for the appellants (Azalga Kusasi, Azabugu Kusasi and Azobide Kusasi). Glasgow for the respondent (Crown).
The Court asks Glasgow if he supports the conviction.
ARGUMENTS OF COUNSEL
rd
Glasgow: There is lack of evidence as to the 3 appellant, and the Crown does not support his conviction.
The Court draws attention to secs. 61 (2) and 250 (2) of the Criminal Code.
Glasgow: In view of those sections, and of what the Court has said, the Crown does not support convictions for murder against the 1st and 2nd appellants. It is submitted that sec. 250 (2) of the Criminal Code applies, and that those appellants should have been convicted of manslaughter.
JUDGMENT OF VAN LARE AG. C.J.
(His lordship stated the facts, and continued:)
We do not think that there was a concerted intention to kill and we are satisfied that the killing was an action of the first two appellants only, committed in circumstances when each had lost the power of self-control. There is no evidence that the third appellant participated in the assault after the deceased first fell to the ground. His statement, which stands uncontradicted, is that when the first two appellants started to beat the deceased while he struggled on the ground, he (third appellant) ran away from the scene. We think that by so doing he showed that was not prepared to be associated with what might—and did—occur.
What is clear on the evidence is that the deceased was a person who was believed by the appellants to have been accused by the villagers of felony, and who was endeavouring to avoid arrest by the
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appellants. The law applicable to these fact is contained in section 61 (1) of the Criminal Code:—
“Any person may, with or without warrant or other legal process, arrest and detain another person who has committed a felony, may, if the other person, having notice or believing that he is accused of felony, avoids arrest by resistance or flight or escapes or endeavours to escape from custody, use any force which is necessary for his arrest, detention, or recapture, and may kill him, if he cannot by any means otherwise be arrested, detained, or retaken.”
The learned trial-Judge did not direct the assessors, or himself, as to this provision of the law. In his opinion there was no justification for the accusation of theft. He appears to have given undue weight to the deposition of a witness who (for no assignable reason) could not be got to attend the trial, and whose reliability, therefore, could not be tested by his demeanour in the witness-box. His evidence at the Preliminary Inquiry was that he was that companion of the deceased whom the villagers had accused of felony on the fatal night, and who had escaped arrest by the appellants.
The appellants at their trial offered no evidence; each relied on the statement made to the police; and the prosecution had no evidence other than the statements of the appellants concerning the killing and the circumstances as shown above. As in his own judgment the prosecution case rested on the statements made by the appellants to the police when charged with murder, the learned trial-Judge had no alternative but to have regard to the account of the matter which those statements contained, and it was his duty to draw attention to the section to which we have referred.
The learned trial-Judge expressed the view that the deceased died as a result of a concerted attack on him by the appellants with cudgels, the first appellant being the ring-leader. With respect, this finding is not supported by the evidence. He concluded as follows:.” the deceased was armed with a knife at the time, but there is no evidence of provocation, nor can it be said that the killing was in any way justified.” Again, with respect, we differ. Had the learned trial-Judge taken the proper view of the facts he would have considered section 61 (1), and there would have been no difficulty as to justification, subject to what we have to say later.
In treating the three appellants together as confederates in the act of killing, the learned trial-Judge failed to have regard to the evidence. We have already pointed out that the third appellant ran away from
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the scene when the first two engaged themselves in the acts which caused the death of the deceased.
We remind ourselves that
“it is not necessary that a man, to be guilty of murder, should actually have taken part in a physical act in connection with the crime. If he has participated in the crime-that is to say, if he is a confederate-he is guilty, although he has no hand in striking the fatal blow. Equally, it must be borne in mind that the mere fact of standing by when the act is committed is not sufficient. A man, to become amenable to the law, must take such a part in the commission of the crime as must be the result of a concerted design to commit the offence.” (Azumah & anor. v. The King (13 W.A.C.A. at page 88, citing what the Lord Chief Justice of England said in Rex v Gray (12 Cr. App. R. 244 at 246)).
It has been conceded by the learned Senior Crown Counsel, and rightly in our view, that it is impossible to find against the third appellant any evidence of intention to kill. In the absence of evidence against him we allowed his appeal, setting aside his conviction and sentence. He was accordingly acquitted and discharged.
We now have to proceed in respect of the first and the second appellants, whose positions we consider to be different. We are of the opinion that it became unnecessary after the deceased had been disarmed, and was struggling on the ground, to beat him to death. There was a time when they could have effected the arrest without great use of force. Although there was justification in law for causing harm to the deceased in order to arrest him, the first and the second appellants definitely exceeded the force necessary to achieve their purpose. We think, however, that they acted from terror of immediate death to themselves, and for the time being were probably deprived of the power of self-control. They made a clean breast of it all to the chief of their village, and to the police, when contacted.
DECISION
In conclusion, we are of the opinion that this is a case in which the offence of murder can properly be reduced to manslaughter under section 250 (2) of the Criminal Code. We therefore also allow the appeals by the first and second appellants, and we set aside the verdict of murder, and the sentence of death passed at the trial on each of them. We substitute for the verdict found at the trial a verdict of guilty of manslaughter, and we pass a sentence of 5 years I.H.L. on each of them.
