REPUBLIC v. DARKO [1971] 2 GLR 227

DIVISION: IN THE HIGH COURT, CAPE COAST

DATE: 4 JUNE 1971

BEFORE: EDWARD WIREDU J.

NATURE OF PROCEEDINGS

PRELIMINARY POINT raised by trial judge suo motu that an accused person who had tried to shoot a gun at a man after saying he should be allowed to kill him was not properly charged under the Criminal Code, 1960 (Act 29), ss., 18 (1) and 70. The facts are fully set out in the ruling.

COUNSEL

A. A. Forster, Senior State Attorney, for the Republic.

The accused in person.

JUDGMENT OF EDWARD WIREDU J.

The indictment preferred against the accused person accuses him of the offence of attempting to cause harm by the use of an offensive weapon, contrary to sections 18 (1) and 70 of the Criminal Code, 1960 (Act 29).

[p.228] of [1971] 2 GLR 227

The prosecution’s case in support of the offence as presented by the first prosecution witness and the second prosecution witness, the material prosecution witnesses, reveals that on the night of 27 March 1970, the accused with a loaded double-barrel gun, exhibit A, went to the house of the first prosecution witness who was conversing with the second prosecution witness in a room and shot at the first prosecution witness, but the gun did not fire. As a result of a struggle which later followed the unsuccessful attempt, both the first and second prosecution witnesses over powered the accused and seized exhibit A from him. Both the first and second prosecution witnesses testified further that:

(a) when the accused pointed exhibit A at the first prosecution witness, he asked the second prosecution witness to clear the way to enable him kill the first prosecution witness;

(b) the accused actually pulled the trigger and they both heard the noise made by the trigger when it was pulled;

(c) exhibits B and B2 were the cartridges they found in the chambers of exhibit A;

(d) exhibit B showed a dent at one end indicating the impact made by the trigger on it when it was pulled.

At the close of the prosecution case, I felt that this was a clear case of attempted murder. I therefore invited learned state attorney to address me on whether it was open to me to call on the accused to open his defence in view of the variation between the evidence and the offence charged. I explained that in view of the expressed intention of the accused to kill the first prosecution witness as testified by the prosecution witnesses, I was of the view that it was a proper case of attempted murder, but that as the accused stood charged with another offence I was entertaining some doubt on what offence to call on the accused to answer. I further invited learned state attorney to satisfy me whether I could call on the accused to answer for a higher offence where he had been charged with a lesser offence. When inviting learned state attorney on the second issue I had in mind the fact that both attempted murder and causing harm by the use of offensive weapon are first degree felonies. In other words, the degree of seriousness of the two offences are in the eyes of the law the same. An attempt to cause harm under section 70 of Act 29 even though it may carry the same punishment as the substantive offence under that section is obviously a lesser offence than the substantive one and if that is so then an attempt to cause harm under section 70 will obviously be a lesser offence than attempted murder.

In answering the first question, learned state attorney submitted that on the particular facts of this case the prosecution could proceed under either section 46 of Act 29, i.e. attempted murder or under sections 18

(1) and 70 of Act 29, attempting to cause harm by the use of an offensive weapon.

Counsel further submitted that where a particular act offends against two or more provisions of the Code or the law the prosecution can maintain an action on either of the two or any of the other provisions of the law so infringed.

[p.229] of [1971] 2 GLR 227

The first argument of learned state attorney shows that on the particular facts of this case the evidence adduced by the prosecution satisfies all the essential ingredients which go to make the offences under section 46, or sections 18 (1) and 70 of Act 29. I shall come to deal with this later. As regards the second submission, I would concede that the ingenious argument of learned state attorney represents the true position of the law as a general principle of practice. The only point this argument seems to overlook in relation to the instant case is that where the prosecution chooses to proceed on a particular section of the Code it cannot secure a conviction under that section unless the evidence led supports the charge or unless the Code itself permits a conviction for another offence where the evidence supports the latter offence even though the accused was not charged with it. In other words, if the prosecution proceeds under section A, a conviction under section A can only be secured if the evidence produced by the prosecution supports an offence under section A. If the evidence, however, supports an offence under section B, the prosecution cannot secure a conviction under section A, because the evidence does not support an offence under that section, neither can a conviction be secured under section B, because the accused has not been charged under that section, unless the law permits that even though the evidence does not support an offence under section A, with which he has been charged, since the evidence supports an offence under section B, he could be convicted under that section despite the fact that he was not charged under that section. So that where the prosecution has a choice and chooses to proceed under a particular one the general rule is that the prosecution cannot succeed if the evidence led does not support the one chosen.

Now with this as a background let us proceed to see how far the evidence in the instant case can support sections 46, 18 (1) and 70. This we can do by analysing the essential ingredients of the two offences. First, attempted murder: Murder is defined in section 47 of Act 29 as follows: “Whoever intentionally causes the death of another person by any unlawful harm is guilty of murder.” So attempted murder can be defined by putting the word “attempt” just immediately after the word “whoever.” It should be remembered that in the instant case the attempt will be made by the use of exhibit A. Secondly, attempting to cause harm by the use of an offensive weapon: In other words attempting to cause harm by the use of exhibit A. The second offence can be defined by looking at the meaning of unlawful harm.

Section 76 of Act 29 defines unlawful harm as follows: “Harm is unlawful which is intentionally or negligently caused without any of the justifications mentioned in Chapter 1 of this Part.” When the definition of unlawful harm is applied for analysis with the two offences contemplated under sections 46 and 70 of Act 29 we have the following: Attempted murder is an attempt to cause intentional death by harm intentionally inflicted. Attempted causing harm is an attempt to cause intentional harm by the intentional use of an offensive weapon. Therefore most of all the [p.230] of [1971] 2 GLR 227 essential ingredients of attempting to cause harm form part of the essential ingredients of attempted murder, but the characteristic difference between the two lies in the nature of the “intent.” In attempted murder not only must the attempt aim at causing unlawful harm but that the harm must aim at causing death, whereas in the case of attempting to cause harm the attempt must aim at causing harm and no more.

It is clear from the above analysis that the ingredients of the two offences are not the same and that different evidence will be required to prove each of them. In the case of attempted murder the “intention” must be murderous whereas in the case of causing harm the “intention” must be to cause harm and nothing more, so that under the latter intention if death results it can only be “manslaughter.” So that the proposition of the principle of practice as submitted by learned state attorney cannot apply to the instant case.

The question now is which of the two offences does the evidence support. The obvious answer here is an offence under section 46 of Act 29. For the evidence shows that not only did the accused aim the loaded gun at the first prosecution witness with the intent to cause harm to him but he expressed his intention to kill him. If that is so then can I call on the accused to answer a charge under sections 18 (1) and 70 which the evidence does not support?

Learned state attorney says I can. I have troubled my mind for the past three days to see eye to eye with the learned state attorney on his view but I have the misfortune of reaching a conclusion diametrically different. Tried as I have, I have not been successful in persuading myself that in applying the principles which are well known I am entitled to call on the accused. My researches did not carry me successfully beyond the statutory rights conferred on the court by sections 153 and 154 of the Criminal Procedure Code, 1960 (Act 30), but this case does not fit into any of the provisions of the said sections. In the result, I am constrained to withdraw the case from the jury. I do not therefore call upon the accused who is accordingly acquitted and discharged.

DECISION

Case withdrawn from jury.

Accused acquitted and discharged.

S.A.B.