Division: IN THE COURT OF APPEAL
Date: 28TH SEPTEMBER, 1959
Before: VAN LARE J.A. AS C.J., GRANVILLE SHARP J.A. AND OLLENNU J.
Murder—Gunshot wounds—Inadequacy of hospital treatment no defence to killer unless itself criminal.
HEADNOTES
Early in the morning of the 16th December, 1958 Victus Atta Kofi and his son Kojo Botwe were returning from their farming to their house at Nyinase, when they saw Kwaku Basare carrying away a bag of cocoa from their verandah. They shouted to Basare twice to put it down before he did so; having done so, he began to walk away. Kofi followed, after noticing that another bag of his cocoa was missing. Basare went in the direction of a palm tree, took up a gun which was leaning against it, and shot at Kofi, wounding him with pellets in the lower part of the abdomen on the left side.
Kofi (a man of about 65) was taken to hospital at Hohoe, and died there on the 9th January, 1959. The cause of death was generalised peritonitis resulting from perforation of the gut by a foreign body. No pellet was found (Hohoe Hospital had no X-Ray equipment), but the evidence given by the doctor who treated Kofi, and who conducted a post mortem examination, was that in his opinion death had resulted from injury by gunshot.
A double-barrel shot-gun was later found in possession of someone from whom Basare had borrowed it, and to whom he had returned it by his (Basare’s) sister after the shooting.
The missing bag of cocoa was found in the possession of someone to whom Basare had sent it, early on the day of the shooting, for sale.
Basare was tried before Simpson J., sitting at Ho with a jury, on indictment for murder. He pleaded an alibi-he was not on Kofi’s premises; he had gone to Kpalime the previous day for medical treatment, and had remained there for some days. His wife, called as a defence witness, gave it in evidence that (to the contrary) he did not leave for Kpalime till 6.30 a.m. on the day of the shooting,”not long before the Police came” (they came at 8.30 or 9); though to the Police at the time she had said that he had left for Kpalime the previous day. She also gave evidence that she had seen him hand over the borrowed gun and the stolen cocoa on the day of the shooting.
Basare was convicted of murder, and appealed to the Court of Appeal (Crim. App. No. 71/1959), where it was argued that the trial-Judge had failed to consider whether or not the deceased had died of the treatment he had received in hospital.
Held: that death resulting from treatment of a wound unlawfully inflicted does not, however inadequate such treatment may have been, exonerate the person who inflicted the wound from responsibility in law for the consequences of his act, unless the treatment itself amounts to murder or manslaughter.
ARGUMENT OF COUNSEL
Wuaku for appellant (Basare). There is sufficient evidence on record to show that the treatment received by the deceased at hospital was responsible for his death. On the doctor’s own evidence he was himself guilty of the murder or manslaughter of deceased within the meaning of sec. 255(4) of the Criminal Code. See Halsbury (3rd Edn.) Vol. 10, para. 1353 (last paragraph).
Glasgow for respondent (Crown) not called on to argue.
JUDGMENT OF GRANVILLE SHARP J.A.
(His lordship stated the facts, referred to “the incontrovertible evidence” and the failure of the defence of alibi, and proceeded:)
Realising the vanity of any attempt to complain about the summing-up of the learned Judge in relation to the evidence as to the appellant’s responsibility for a wounding which was followed by the death of the victim, Counsel for the appellant took refuge in an additional ground of appeal, which we gave him leave to file. This was as follows: “The learned Judge erred in failing to consider whether the treatment given to the deceased in hospital may have been responsible for his death.”
As to this, it is enough to say that death resulting from treatment of a wound unlawfully inflicted does not, however inadequate such treatment may have been, exonerate the person who inflicted the wound from responsibility in law for the consequences of his act, unless the treatment itself amounts to murder or manslaughter. The evidence in this case shows that, in fact, every available means of treatment was used, and that the deceased was tended with anxious care in an attempt to allay the effects of his wounds, and to save his life.
DECISION
There was no substance whatever in the appeal and we accordingly dismissed it.
