Mbola v Rex (Cr.A. 113/1934.) [1937] EACA 180 (1 January 1937)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before ABRAHAMS, C. J., Ag. P. (Uganda), LAW, C. J. (Zanzibar), and LUCIE-SMITH, Ag. C. J. (Kenya).

MASHAMBA BIN MBOLA (Appellant) (Original Accused)

REX (Respondent) (Original Prosecutor). Cr. A. 113/1934.

## Plea of accused—Construction—Use of depositions by Court in assessing sentence.

Accused was charged with manslaughter contra section 188 of the Penal Code (Ordinance No. 11 of 1930) of Tanganyika Territory, by unlawfully causing the death of a native woman. The instrument causing death was a gun. Accused pleaded that when he fired the gun he did not see the woman and that it was not his intention to kill her. It was admitted by the Crown that the woman was hidden from the view of accused. Accused's plea was construed as a plea of guilty. Previously to accused's shot another gun was discharged by another person. Both shots were fired during the course of a native dance at which beer was drunk.

- Held (11-9-34).-The trial Court before construing any answer to a charge of manslaughter by negligence as a plea of guilty must be. fairly satisfied that the accused fully understands the exact nature of the charge and admits the ingredients without qualification. - Held Further.-A Court in assessing a sentence ought not to use the depositions because an accused is thereby prejudiced. Section 279 of the Criminal Procedure Code (Ordinance No. 12 of 1930) should be employed by the Court for the purpose.

Appellant not represented.

Branigan, Crown Counsel, Tanganyika Territory, for the Crown.

JUDGMENT.—This appeal must succeed. We do not regard the answer of the appellant as a plea of guilty. In any event the trial Court, before construing any answer to a charge of manslaughter by negligence as a plea of guilty, must be fairly satisfied that the accused fully understands the exact nature of the charge and admits the ingredients without qualification.

We must also observe in reading the depositions that it is at least not out of the question that it was Mindo's bullet which killed the woman, so an order for a new trial would be unreasonable.

The learned Acting Jüdge ought not in assessing a sentence<br>to have used the depositions. The accused is thereby prejudiced. Section 279 of the Criminal Procedure Code should be employed for the purpose.

The sentence seems to us to be disproportionate to the offence charged. There was a drunken spree, and the appellant did not take the initiative in discharging his gun. This act was thoughtless rather than perverse. We allow the appeal and acquit the appellant.