R v Luhila (Criminal Review Case 1 of 1936) [1936] ZMHCNR 2 (31 December 1936)

100 Vol. I] R. v. LUHILA. A Cr im in a l R e v i e w Ca s e o f 1936. Person setting stakes as trap on public path with intent to cause harm to any person using path— no evidence in support o f conviction fo r unlawful wounding under Penal Code section 208 (1)— evidence o f unlawful act whereby harm caused to some person under P enal Code section 214— power o f High Court on review under Crim inal Code sections 300 and 309 to alter finding and enter judgm ent o f guilty under P enal Code section 214— sentence too severe in circumstances— Crim inal Procedure Code section 187 (2) requires accused’s adm ission o f guilt to be recorded as nearly as possible in words used by him. The High Court has power on review under Criminal Procedure Code section 300 and section 309— (a) to alter the section under which a Subordinate Court has entered a conviction and to substitute a conviction under another section; (b) to reduce the sentence passed by the Subordinate Court. Where an accused person admits the truth o f the charge, his admission shall be recorded as nearly as possible, in the words used by him (Criminal Procedure Code section 187 (2). Francis, J . : There is no evidence in law sufficient to sustain a verdict of wounding under section 208 (1); but there is a case under section 214 and the charge might have been laid, that he on or about the 10th April, 1936, set certain sharp pointed stakes as a trap on a public path going towards the village o f Katulu with intent that they should cause harm upon any person coming in contact therewith thereby com ­ mitting an unlawful act whereby harm was caused to one Indura Likulu contrary to Penal Code section 214. The act described is one provided for in England under the Offences against the Person Act, 1861, section 31 (Archbold 28th E dition, page 971) which is not repeated in our Code. Accordingly I propose to alter the finding under section 208 by entering a verdict of guilty under section 214. Moreover in view o f the following facts that (a) this is one o f the first offences recorded in the district; (b) there is no previous conviction in evidence against the accused; and (c) the sentence has included one o f corporal punishment, already awarded, I think the im position o f the maximum term o f imprisonment permitted by law is too severe. This being m y view, I propose to reduce the term to one o f three months. Before acting, however, I should be glad if the Attorney-General might be given an opportunity o f submitting such observation as he thinks fit. [Vol. I Please request the Magistrate in future not to use the expression “ cuts The proper word is that found in the law— “ strokes I notice that the plea o f the accused is recorded by the word “ guilty I do not suggest in this case that the accused did not use in his language an equivalently abbreviated expression; but I would remind the Magistrate that the Criminal Procedure Code, section 187 (2) requires — and for very good reason— that the accused’s admission shall be recorded as nearly as possible in the words used by him, those words o f course being translated literally into English. As to paragraph 8 of the Magistrate’s memorandum the law does not empower me to act as he would desire.