Kamuyu v Reginam (Criminal Appeal No. 1033 of 1954) [1955] EACA 335 (1 January 1955)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President), and BRIGGS, Justice of Appeal

# KAMAU s/o KAMUYU, Appellant (Original Accused)

$\mathbf{v}$

# REGINAM. Respondent

# Criminal Appeal No. 1033 of 1954

(Appeal from the decision of H. M. High Court of Tanganyika, Sir Herbert $Cox. C. J.)$

Charge—Form of—Wounding with intent—Wounding—Two intents alleged in<br>separate charges for same unlawful act—Conviction on both counts— Whether accused twice punished for same offence-Penal Code, sections 21, 222 (1) and 228—Criminal Procedure Code, section 138 and Second Schedule. item $5$ .

The appellant was arraigned on an information containing two counts each of which charged him with wounding with intent. Both counts related to one and the same act, but each alleged a different intent.

The appellant was convicted on both counts and concurrent sentences were imposed.

By section 21 of the Penal Code: $-$ "A person cannot be punished twice under the provisions of this Code or under the provisions of any other law for the same act or omission ....'

Item 5 of the Second Schedule of the Criminal Procedure Code sets out the following specimen charge: —

$5 -$ WOUNDING

First Count.—Wounding with intent, contrary to section 222 of the Penal Code.

# PARTICULARS OF OFFENCE

A. B., on the $\ldots$ day of $\ldots$ in the Province of ................., wounded C. D. with intent to maim, disfigure or disable, or to do some grievous harm, or to resist the lawful arrest of him the said

$A. B.$

Second Count.—Wounding, contrary to section 228 of the Penal Code. PARTICULARS OF OFFENCE

A. B. on the $\ldots$ , $\ldots$ , day of $\ldots$ , in the Province

of ....................................

Section 138 of the Criminal Procedure Code sets out the mode of charging offences.

*Held* $(31-3-55)$ . $-(1)$ Although the evidence supported the existence of the two intents, these intents should have been alleged in one and not in two separate charges.

(2) The accused person should have been charged in manner set out in item 5, supra, i.e. both under section 222 and section 228 of the Penal Code.

(3) The accused person, through the failure to observe the provisions of section 21 of the Penal Code, had been punished more than once for the same unlawful act

Appeal allowed in part. Conviction and sentence on first count quashed. Conviction and sentence on second count affirmed.

# Appellant absent, unrepresented.

$\ddot{\phantom{0}}$

# Sir James Henry, Acting Attorney-General (Tanganyika) for respondent.

JUDGMENT (prepared by Nihill (President)).—The appellant was arraigned before the High Court of Tanganyika on an information containing two counts. Both counts charged the appellant with wounding with intent contrary to section 222 (1) of the Tanganyika Penal Code, and both counts related to one and the same act of wounding. The only difference between the two counts lay in the fact that different intents were alleged. In the first count the intent is described as an intent to maim, disfigure or disable; in the second count the intent is set out as an intent to prevent his (the appellant's) lawful arrest. The learned trial Judge convicted on both counts and imposed concurrent sentences of imprisonment. He also added 15 strokes of corporal punishment. Whilst the evidence which the learned Judge accepted supported the existence of the two intents it is manifest that there has been a failure to observe the provisions of section 21 of the Tanganyika Penal Code in that the appellant has been punished twice in respect of the same unlawful act, namely that of having unlawfully wounded the complainant, Petro s/o Rahi. The appellant was an escaped prisoner. On the facts as established it seems clear that the purpose behind his attack on Petro was to prevent his arrest which he believed to be imminent. Accordingly we confirmed the conviction and sentence on the second count and quashed the conviction and sentence on the first count. The sentence of corporal punishment remains.

We reserved our written reasons so that we could consider the correctness of the information as drawn. In our opinion the Crown Counsel who drafted this. information erred in splitting the two intents alleged into two separate counts. The offence covered by section 222 is the offence known as wounding with intent and a person who commits that offence does not commit another offence because when he wounds his *mens rea* may include more than one of the several intents specified in the section. If there is evidence that this is so the proper course is to set out the intents in the particulars. This is borne out by the specimen chargeset out under section 222 in the Second Schedule to the Tanganyika Criminal Procedure Code, which is as follows: -

#### "5.—WOUNDING

First Count.-Wounding with intent, contrary to section 222 of the Penal Code.

# PARTICULARS OF OFFENCE

A. B., on the $\ldots$ day of $\ldots$ in the Province of .............., wounded C. D., with intent to maim, disfigure or disable, or to do some grievous harm, or to resist the lawful arrest of him the said A. B. Second Count.-Wounding, contrary to section 228 of the Penal Code.

#### PARTICULARS OF OFFENCE

A. B., on the $\ldots$ day of $\ldots$ in the Province of

............., unlawfully wounded C. D."

It is interesting to observe that in this specimen information the draftsman has included in the second count the minor offence of wounding contrary to section

228 of the Penal Code. On an information so drawn if the prosecution failed to prove any of the intents specified in section 222 but proved the unlawful wounding, the court could convict of the minor offence. Had Crown Counsel in this case taken into account the provisions of section 138 of the Tanganyika Criminal Procedure Code and referred to the Second Schedule he would not have gone wrong and the trial Judge would not have committed the error of punishing the appellant twice in respect of the same act. We would add that the specimen charge given in the Second Schedule exactly follows the specimen indictment given in Archbold, 33rd Edition, page 1001, of the offence of wounding with intent contrary to section 18 of the Offences Against the Person Act, 1861.

As we have already indicated this appeal is allowed in part, in that the conviction on the first count is quashed and the sentence set aside. No practical advantage however will accrue to the appellant, for he remains under sentence of 10 years' imprisonment with hard labour and 15 strokes of corporal punishment.