Division: SUPREME COURT
Date: 5 MARCH 1965
Before: MILLS-ODOI, OLLENNU AND SIRIBOE JJSC
JUDGMENT OF SIRIBOE JSC
Siriboe JSC delivered the judgment of the court. The appellant was convicted of murdering one Charles Kofi Aidoo on 14 December 1963 at Moree, near Cape Coast. The trial was before Charles J. sitting with a jury, and it is against that conviction following the verdict returned by the jury, that the appellant has appealed to this court.
The grounds of appeal filed which were argued by leading counsel for the appellant (Mr. Essilfie-Bondzie) are:
“(1) The verdict cannot be supported having regard to the evidence adduced before the court.
(2) The learned trial judge misdirected the jury in his summing-up by:
(a) Not putting the defence adequately to the jury.
(b) Wrongly directing them to return two possible verdicts, namely, murder or manslaughter.”
Before considering learned counsel’s submissions on these grounds, it is expedient to set out the facts of the case for the prosecution and the defence respectively.
For the prosecution, it was alleged that the deceased, the appellant and the second prosecution witness were brothers and sister respectively with the first prosecution witness as their uncle; they all live at Moree near Cape Coast. The deceased and the sister—the second prosecution witness—lived in the same
house though in separate rooms, and the appellant lived in a different house near them. On the date mentioned in the bill of indictment, at about 5 p.m., the appellant went to the second prosecution witness’s house and complained to her that his wife, unlike the first time when they got married, had refused to go and sleep with him whenever she returned from the bush. As a result the appellant said he would not eat the food which the wife had then prepared for him. The second prosecution witness then advised the appellant to exercise patience for she would report the matter to their uncle, the first prosecution witness. The appellant left for his house and shortly afterwards the first prosecution witness arrived and was told about what had happened. He went to the appellant, and whilst talking to him about what the second prosecution witness had told him, the deceased also arrived. On being told about what had transpired, the deceased also advised the appellant to exercise patience as the matter would be settled the following day.
Suddenly, as the evidence of the first prosecution witness shows, the appellant stabbed the deceased. The second prosecution witness who was sitting at some distance by said she heard the deceased shout, “Agnes hold me fast. Kofi [the appellant] has stabbed me. She, in response to this, rushed to the deceased and helped to push back the deceased’s intestines which were protruding, after which she tied the abdomen with her cover cloth. The deceased was subsequently driven in a taxi to the Cape Coast Hospital.
The first prosecution witness who was present who was present when the stabbing took place managed to take away the knife from the appellant, which he gave to the District Commissioner of Moree, after a report had been made to him. The knife was later tendered at the trial as exhibit A. The appellant was arrested and taken to the Police Station, Cape Coast. The deceased died at 1.30 a.m. on 16 December,1963. The medical officer’s evidence about his examination of the deceased both before and after his death, was consistent with the story that the deceased was stabbed with a knife. It also gave the cause of death as “shock due to a stab wound of the abdomen.”
The defence did not deny the stabbing, for, on 15 December 1963 the appellant made the following statement on caution to the police which was tendered unobjected to and accepted as exhibit B:
“On 14 December 1963 at about 1 p.m. I drank one shilling worth of illicit gin value [about] one shilling and got drunk heavily. I picked up a quarrel with my younger brother, Charles Kofi Aidoo alias Kofi Donkor and I stabbed him with my knife at his left side ribs .I have had no trouble with him.”
At the trial, however, the appellant denied the portion which stated that he picked a quarrel with the deceased and stabbed him. He repeated the story of taking in some drink (palm wine and illicit gin). He also admitted going to the second prosecution witness and making a report about his (appellant’s) wife’s
behaviour to the second prosecution witness when the latter advised him to go and sleep which he did, after drinking the illicit gin.
He denied seeing the first prosecution witness that day, and said that he, the appellant, and the deceased got on very well and lived happily together, and so he had no reason for harming him. In the course of his sleep, the appellant said, he heard some noise in the yard. He woke up and found that his hands and feet were tied with ropes, and he was thence taken to the police station at Cape Coast. Under cross-examination, the appellant said he was annoyed because his wife did not go and sleep with him.
At the close of the case for defence, learned counsel for the appellant in the course of his address submitted that the appellant did not deny causing the death of the deceased. He said the defence was drunkenness and, relying on section 28 (4) of the Criminal Code, 1960,1 contended that the appellant had
formed no intention to kill the deceased at the material time. He was however found guilty of the murder of the deceased.
Before us, it was contended on behalf of the appellant in support, of ground (1), that the evidence shows that there was no motive for the killing, because it was clear from the first prosecution witness’s evidence that the appellant and the deceased were on good terms, and lived happily together up to the time of the incident. With regard to ground (2), it was learned counsel’s contention that the learned trial judge failed to direct the jury adequately on the absence of any motive, the relationship between the deceased and the appellant, and the defence of intoxication. If this had been done, counsel submitted, the jury would have returned a verdict of guilty of manslaughter.
As to the first ground, it is sufficient to say that in this country, the prosecution need not prove motive in a charge of murder in order to sustain conviction. We now come to counsel’s submissions on ground (2). The learned judge after dealing with the case for the prosecution and his direction to the jury as to the burden of proof, proceeded to deal with the defence very exhaustively. He also read out and explained to the jury the provisions of section 28 (4) of the Criminal Code, 1960, on which, as earlier pointed out, the defence relied.
Continuing his summing-up, the learned judge stated as follows:
“Direct jury that in deciding whether the accused had formed the intention to kill the deceased they should consider whether he was intoxicated at the time he stabbed the deceased. Point out that although it is not necessary for the prosecution to prove motive, there is no motive for the crime apart from what accused is alleged to have said in his statement about picking a quarrel with the deceased and the accused has denied this. First prosecution witness who was present never mentioned any quarrel. The accused and the deceased were on very good terms and the accused respected the deceased. The first and second prosecution witnesses could not say whether the accused had drunk alcohol but they both said he was not drunk. It is for the jury to say whether the strange behaviour of the accused in stabbing his brother whom he respected was caused by the alcohol which the accused said he drank.
Direct the jury that the accused does not have to prove beyond reasonable doubt that he was drunk.
Direct jury that if they accept the explanation of the accused that he was drunk and did not know what he did or if his explanation leaves them in a reasonable doubt or if on a consideration of the whole of the evidence they are not sure that accused intentionally killed his brother (the deceased) then they must return a verdict of guilty of manslaughter.
Direct jury that they can only find the accused guilty of murder if they are convinced and have no reasonable doubt that he intentionally killed the deceased.”
The defence being one of drunkenness, and this having been properly brought up for consideration by the jury, whose duty it is, as sole judge of fact to decide whether or not the appellant was drunk at the time the offence was committed, it is difficult to find any justification for counsel’s submissions on grounds of misdirection. By their verdict, the jury made it quite clear that they rejected or disbelieved the defence of drunkenness, and were satisfied that the killing was intentionally and unlawfully done.
With that verdict we are unable to disagree. The position would have been otherwise, if there being evidence of drunkenness apparent on the face of the record, the learned judge had been silent on it, or had failed to direct the jury on it in his summing-up. In that case, this court would be justified in holding that there was a misdirection by non-direction and as such substitute for the verdict of murder, one of manslaughter on the authorities of R. v. Kotoro2 and Kofi Mensah v. R3 Unfortunately for the appellant this was not so.
In the circumstances we did not consider it necessary to hear learned state attorney, as we were of the opinion that nothing substantial had been said to necessitate his being called upon to answer it.
In conclusion we would dismiss this appeal as being devoid of merits.
DECISION
Appeal dismissed.
A. K. F.
