Kipturji v Rex (Cr.A. 138/1934.) [1937] EACA 188 (1 January 1937)

## COURT OF APPEAL FOR EASTERN AFRICA.

## Before ABRAHAMS, C. J., Ag. P. (Uganda), McDougall, Ag. C. J., and BATES, J. (both of Tanganyika).

## KIMNO ARAP KIPTURJI (Appellant) (Original Accused)

# REX (Respondent) (Original Prosecutor).

#### Cr. A. 138/1934.

- Penal Code (Kenya) sections 185, 186, 187 and 189 (c)-Murder and manslaughter-Intent to commit a felony-Malice aforethought. - Held:-That there is no authority in the English decisions for holding that any felonious act done as an end in itself and without any intention to cause death or grievous harm imports of necessity malice aforethought. - Held Also.-That the question nowadays is whether the felony was likely or unlikely to cause death and that a man is liable only for the natural and probable consequences of his tortious act, and what is a natural and probable result depends on the nature of the act and not upon its being felonious, and is what would have appeared to the prisoner its natural and probable result. Observations made on differentiating fatal acts of violence felonious in<br>themselves but done without homicidal intent and fatal acts of violence done without homicidal intent but in the course of or<br>furtherance of felonies. Cases of $R$ . $v$ . Horsey, 176 E. R. p. 130; R. v. Beard (1920), 14 Cr. App. Rep., p. 158; and R. v. Betts and Ridley (1930), 22 Cr. App. Rep. 148, referred to. Conviction altered from one of murder to manslaughter. Appellant absent and unrepresented.

Smith, Ag. Crown Counsel (of Tanganyika) for Crown.

$Smith.-I$ cannot support the conviction. The femoral artery was evidently pierced. Section 189 (c) Penal Code: an intent to commit a felony not proved. Rex v. Greenwood $(1857)$ $7 \text{ Cox}, 404.$

JUDGMENT.—The appellant was convicted of murder. The homicide was committed in the following circumstances. The accused intruded in a private conversation between the deceased and two other men. He was twice told to go away and on the second occasion picked up deceased's spear and with an underhand movement stabbed him in the thigh. The deceased bled to death so rapidly that it seems obvious the femoral artery was pierced. The learned Acting Judge who tried the case expressed his opinion that the appellant did not intend to kill the deceased and we think he must have implied also that there was no intention to inflict grievous harm, otherwise he would have so-He found, however, that the appellant did intend to found. commit a felony, namely the felony of unlawful wounding within

the terms of section 217 Penal Code, and he therefore found that malice aforethought had been established by the application to the facts of section 189 $(c)$ of the Penal Code.

No objection can be taken to the finding that the appellant was guilty of unlawful wounding. The question we have todecide is whether the learned Acting Judge has properly interpreted sub-head $(c)$ of section 189 of the Penal Code. That provision laws it down that malice aforethought shall be deemed to be established by evidence proving an intent to commit a felony.

If the learned Acting Judge's ruling be carried to its logical extent we arrive at the somewhat startling proposition that a comparatively trivial wound inflicted without any intention of causing serious injury but becoming gangrenous and so causing death would, because its infliction amounted to a felony, lead to a capital charge. This, however, should not deter us from upholding this conviction if it has been properly had.

Now, is there any authority in the English decisions for holding that any felonious act done as an end in itself and without any intention to cause death or grievous harm imports of necessity malice aforethought? If that were so, it would render superfluous sub-head $(a)$ of section 189 of the Penal Code, that is to say the establishment of malice aforethought by proof that the act causing death was done with the intention of causing death or grievous harm, since an act done with the intention at least of causing grievous harm would amount to a felony. But we have been unable to find any case which supports the view of the learned Acting Judge. The old rule propounded by Foster that whenever death is caused, even unintentionally, by a felony, the crime is murder, was doubted as long ago as 1862 (vide the footnote to the report in Regina v. Horsey, 3 F. & F. 287; 176. E. R. at p. 130), and in Roscoe, Criminal Evidence, 15th Edition, at p. 881, it is said that the rule laid down by Foster in its full extent cannot be taken as correct at the present day, and the question now is: was the felony likely or unlikely to causedeath? This immediately foregoing observation in all probability applies only where the injurious act was not intended to injure the victim, whereas in the case before us there was a definite purpose to inflict a wound, but since the thoroughgoing dictum of Foster can fairly be said to be no longer tenable, we are of opinion that we ought to require clear authority to be compelled to hold that the legal aspect of the act in this case should prevail over the physical intention, and sub-head (a) of section 189 be dominated by sub-head (c). In the above quoted footnote to Regina v. Horsey, we find the following passage: "The tendency of modern decisions is, rather to narrow than extend the doctrine of constructive murder... Moreover, it is a general principle that a man is not liable, even civiliter, except for the natural and probable consequences of his tortious act; and what is a natural and probable result depends on the nature of the act, and not upon its being felonious, and is what would have appeared to the prisoner its natural and probable result".

That sub-head $(c)$ , however, applies to unlawful acts done in the course of or furtherance of a felony is obvious by ordinary interpretation and up-to-date authority. In $\text{Re}x$ v. Beard (1920) 14 Cr. App. Rep. p. 158, it was held that where a man in a struggle to overcome the resistance of a young girl he desired to ravish, placed his hand over her mouth and pressed his thumb on her throat and strangled her, he was guilty of murder though he had no intention of killing or inflicting any serious injury. The House of Lords, in holding that the homicide was murder said, per Lord Birkenhead, L. C., that the Court of Criminal Appeal was "of opinion that the evidence established that the prisoner killed the child by an act of violence done in the course or in the furtherance of the crime of rape, a felony involving violence. The Court held that by the law of England such an act was murder. No attempt has been made in your Lordships' House to displace this view of the law and there can be no doubt about its soundness". This dictum was employed by the Court of Criminal Appeal in the case of Rex v. Betts and Ridley (1930) 22 Cr. App. Rep. 148, where the decision this time related to homicide committed by striking on the head of a person whom it was designed to rob. The Court said after quoting the above remarks of Lord Birkenhead: "So here, if the jury had been directed that Betts, while in the act of committing a felonious act of violence against the person as he undoubtedly was, caused death by some act done by him in the course of that felonious act of violence, then he was guilty of murder".

In differentiating thus between fatal acts of violence felonious in themselves but done without homicidal intent and fatal acts of violence done without homicidal intent but in the course of or furtherance of felonies we recognize the difficulties which beset a Court endeavouring to interpret a code which by section 4 thereof is to be interpreted in accordance with the principles of legal interpretation in England, which means in accordance with cases from which it is by no means easy to extract general But we are of the opinion that in coming to the principles. conclusion that we should not be justified in affirming this conviction for murder, we are giving proper effect to the wording of section 189 of the Code as the Legislature with the effect of English decisions in mind should be taken to have intended.

We alter the conviction to one of manslaughter. It would appear that the wounding was done on impulse and in the circumstances we think a sentence of five years imprisonment with hard labour would be adequate and we order accordingly.