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.
Murder is defined in section 47 of the Criminal Code, 1960, as, “Whoever intentionally causes the death of another person by any unlawful harm is guilty of murder . . .” and manslaughter is defined in section 51 as “Whoever causes the death of another person by any unlawful harm shall be guilty of manslaughter.” These definitions show that (i) manslaughter is homicide caused by unlawful harm with nothing else, and (ii) murder is homicide intentionally caused by unlawful harm. Unlawful harm itself is defined in section 76 of the Criminal Code, 1960, which reads, “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 an analysis of manslaughter and murder respectively we have the following results: (1) Manslaughter is death caused by unlawful harm, that is to say by harm intentionally inflicted. (2) Murder is death caused intentionally by harm, intentionally inflicted. Therefore all the important elements of manslaughter form part of the essential ingredients of murder, in other words, murder is first and foremost manslaughter plus something more.
If a person feloniously fires at another in such circumstances as would make the killing of that other person murder, but by accident hits and kills a third person whom he never intended to hit at all, that is murder. That has been laid down over and over again; there is plenty of authority for it.” This view of the law is also clearly set out in section 11 (5) of the Criminal Code, 1960,2 which reads as follows: “If a person does an act with intent to kill, . . . and his act happens to take effect, whether completely or incompletely, against a different person, he shall be liable to be tried and punished as if his intent has been directed against that different person . . .”
If death is caused by accident, it means that it was not caused intentionally, and the harm which resulted from it is not unlawful, and not negligently caused either.
It is not enough to know that the appellant did the act which caused the death of the deceased. The prosecution must show that the prisoner intended that his act would likely cause or contribute to cause the death of the deceased. No one, therefore, would be convicted of murder without proof of that intent.
Thus when the intent with which an act is done is simply to cause harm, death which may result from that harm is manslaughter only, and not murder. But if harm is inflicted intentionally, i.e. unlawful harm is inflicted with a further intent that unlawful harm should cause death, the death which may result, will be murder.
Before a prisoner can be convicted of murder he must be found to have had a real or wicked intention to kill or it must be found that the circumstances were such that he was aware that the result of his act would be death.
In his evidence on oath at the trial the appellant stated that he only intended to kill the unknown man and not the deceased. The fact that he missed because he was blind and could not hit at his intended victim is no justification or excuse in law for killing the deceased instead. The point to consider is that he had showed an intention to kill a human being, which death if caused is murder.
