COURT OF APPEAL
DATE: 12 DECEMBER 1967
BEFORE: OLLENNU, APALOO AND LASSEY JJ.A.
CASES REFERRED TO
(1) Mensah (Kofi) v. R. (1952) 14 W.A.C.A. 174.
(2) Director of Public Prosecutions v. Beard [1920] A.C. 479; sub nom. R. v. Beard, 89 L.J.K.B. 437;
122 L.T. 625; 84 J.P. 129; 36 T.L.R. 379; 64 S.J. 340; 26 Cox C.C. 573; 14 Cr.App.R. 159, H.L.
(3) Serechi v. The State [1963] 2 G.L.R. 531, S.C.
(4) Grumah v. The State [1963] 2 G.L.R. 423, S.C.
(5) Tekpa alias Dzomaku v. The State [1966] G.L.R. 743, C.A.
NATURE OF PROCEEDINGS
APPEAL against conviction and sentence for murder in a trial by jury. The facts are fully set out in the
judgment.
COUNSEL
Ahinkorah for the appellant.
Boison, Chief State Attorney, for the respondent.
JUDGMENT OF OLLENNU J.A.
Ollennu J.A. delivered the judgment of the court. The appellant was convicted by the High Court, Sunyani, of the offence of murder. Against that conviction he appealed to this court on a number of grounds, two only of which were argued; these are:
“(1) The presiding judge misdirected the jury by failing to direct that they were entitled to find the appellant guilty of manslaughter if they were of the opinion that he was so intoxicated as not to have the necessary intent as to make him guilty of murder or murder but insane.
(2) The summing-up notes are not detailed enough and as such it has made it difficult to determine whether justice was not only done but was manifestly seen to be done.” The facts relied upon by the prosecution are briefly as follows: The appellant, his wife, the first
prosecution witness and his son, the eighth prosecution witness lived in a village called Dandwa, near Nkoranza. On the day of the incident his wife, the first prosecution witness, left the village for Akropong a nearby village of members of her family to attend the celebration of funeral rites of her sister who had died a few days before. The appellant had, on the previous
[p.734] of [1967] GLR 732
day, indicated his disapproval of his wife going, and so did not respond when the wife bade him good-bye when she was leaving in the morning. At about mid-day when his son, the eighth prosecution witness, returned from school he met the appellant sharpening his cutlass. In reply to the boy the appellant said he was sharpening the cutlass for use on his onion farm. He did not however go to the farm that afternoon.
The eighth prosecution witness went back to school and when he returned home at about 5.30 p.m. the appellant caused him to buy 1s. 6d. worth of akpeteshie on two separate occasions; the appellant consumed the whole of the first lot; he also drank a portion of the second lot, and went out with what was left.
In the evening of that day, at about 7 p.m. the appellant travelled to the wife’s village; as he entered he walked straight to the wife and began to cut her up with a cutlass; the wife raised an alarm. The second prosecution witness, a sister of the appellant’s wife, seeing this also raised alarm and started running away; the appellant rushed on her too and gave her some cuts with the cutlass. The deceased, a brother of the appellant’s wife, walked up to the appellant and said to him, “Brother-in-law, why?” Thereupon the appellant turned upon him, inflicting very severe wounds upon him and killed him at the spot.
A number of people came out into the streets of the village in consequence of the alarm. The appellant, still holding the cutlass, rushed towards one of them, the sixth prosecution witness, whereupon the sixth prosecution witness who had a gun fired at the appellant’s legs; the appellant fell down, but got up quickly and ran away into the bush; later he reported himself to the police at Nkoranza, that was at about 12.35 a.m., with slight gun-shot wounds on his left leg, and he was taken to hospital. The appellant told the police that he had been shot by the sixth prosecution witness for no just cause. When he was eventually charged with the offence and cautioned, he said he would make his statement in court.
The defence was a complete denial of the offence. The appellant gave evidence that on the day in question he expected his wife to return home, and as she was not coming up to about 7 p.m., he took a walk to her village which was not too far away hoping that he would meet her on the way and return with her, but he did not meet her; that as he got to the village and was going towards the wife’s house, he met the sixth prosecution witness who on seeing him shouted, “This is one of them, this is one of them,” and
then fired a gun at him.
The appellant confirmed the evidence given by his son, the eighth prosecution witness, that he drank a quantity of akpeteshie which he had caused the boy to buy for him. He was however
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concerned to emphasise that he took the spirits at least two and a half hours before he set out to go to the wife’s village and that he has a great capacity for drink. In the course of his summing-up, the learned trial judge read and explained to the jury section 28 of the
Criminal Code, 1960 (Act 29), the provision in our law relating to defence of intoxication.
Arguing the first of the two grounds of appeal set out above, learned counsel for the appellant submitted that while he gave adequate direction on subsections (2) and (3) of section 28 of Act 29, relating to intoxication of the degree which produces insanity, temporarily or otherwise, the learned judge failed to direct the jury on subsection (4) of the said section 28 which relates to intoxication of a lesser degree.
Counsel submitted that section 28 (4) regulates cases where intoxication merely renders a person incapable of forming intent for a particular crime, even though it might not render him insane, temporarily or otherwise. He submitted therefore that while a defence of intoxication might fail in a murder case to secure acquittal or a special verdict of guilty but insane, it could, nevertheless be found by a jury to be of such a degree as to reduce the offence from murder to manslaughter. Counsel relied on Kofi Mensah v. R. (1952) 14 W.A.C.A. 174 and R. v. Beard (1920) 14 Cr.App.R. 159, H.L. for his proposition.
There is some force in the submissions of learned counsel for the appellant. Section 28 of Act 29 provides
as follows: “28. (1) Save as provided in this section, intoxication is not a defence to any criminal charge.
(2) Intoxication is a defence to a criminal charge if by reason thereof the person charged at the
time of the act complained of did not know that the act was wrong or did not know what he
was doing and—
(a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or
(b) the person, charged was, by reason of intoxication, insane, temporarily or otherwise, at the time of the act.
(3) Where the defence under subsection (2) is established, then in a case falling under paragraph
(a) the accused person shall be discharged, and in a case falling under paragraph (b) the special verdict provided for by the Criminal Procedure Code, in the case of insanity shall apply.
(4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed
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any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.”
The subsections of section 28 contemplate two degrees of intoxication: (1) intoxication which is of such a degree of severity as to render a person insane, temporarily or otherwise, and (2) intoxication of a degree and kind which, though it may fall short of insanity, may still be of such a severity as to render a person incapable of forming an intent; where therefore an offence may only be committed with a particular intent, proof that an accused was so drunk as to be incapable of forming the intent for the commission of
the particular offence, would warrant acquittal. But in cases where intent is not essential to constitute an offence, proof of intoxication, is immaterial. Thus in a crime like homicide, i.e. death caused by unlawful harm, which when the harm is inflicted with intent that it should cause death, is murder, but when inflicted without intent that the harm should cause death, is only manslaughter (see Serechi v. The State [1963] 2 G.L.R. 531, S.C.), it is necessary when a defence of intoxication is raised, that the judge should give proper directions not only on subsections (1), (2) and (3) of section 28, with respect to acquittal and special verdict but also on subsection (4) with respect to the possibility of the alternative verdict of guilty only of manslaughter.
But a court is not bound in every case of murder to direct the jury on the alternative verdict of guilty of manslaughter unless there is evidence to warrant such a direction: see Grumah v. The State [1963] 2 G.L.R. 423, S.C.; State v. Serechi (supra) and Tekpa v. The State [1966] G.L.R. 743, C.A. Intoxication is a defence to be established, though the onus of establishing it is very light. And whether or
not intoxication exists is a question of fact and based upon the evidence. In the present case the defence of intoxication was not raised; nevertheless, the law is that if there is some evidence, whether led by the prosecution or the defence or both, from which it may appear probable that the appellant might have been intoxicated at the time of the offence, the trial judge would, in law, be bound to address the jury on it; his failure to do so may be fatal to a conviction.
In this case there is no evidence from which it may reasonably be inferred that the appellant was intoxicated. The simple fact that he took intoxicating liquor a few hours before the incident is not alone enough evidence from which it may be concluded that he was drunk at the time of the commission of the offence.
Intoxication being an effect which alcoholic liquor may produce upon a person, evidence should have
been forthcoming as to the effect
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the consumption of the akpeteshie had on the appellant, if any. But there was no such evidence. In the circumstances the learned judge was quite right in not directing the jury on those matters. Therefore there is no misdirection by non-direction as alleged, and no miscarriage of justice. We pass on now to the second ground of appeal set out above, namely, the complaint that the summing-up notes are not detailed enough. Learned counsel for the appellant was not able to show any particular respect in which the summing-up notes are sketchy, save to say that the summing-up should be exhaustive, and that if it had been, it would be quite easy to see exactly how the trial judge treated section 28 (4) of the Criminal Code. 1960 (Act 29). The submissions under this ground are without substance and do not warrant any further comments. The verdict of the jury is fully warranted by the evidence on the record and should not be disturbed. The appeal is therefore dismissed.
DECISION
Appeal dismissed.
K. S. N. -D.
