Rex v Bihemo (Criminal Appeal No. 46 of 1945) [1945] EACA 13 (1 January 1945)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR JOHN GRAY, C. J. (Zanzibar) and MANNING. J. (Uganda)

REX, Respondent (Original Prosecutor)

BIHEMO s/o BULWAYE, Appellant (Original Accused) Criminal Appeal No. 46 of 1945

(Appeal from decision of H. M. High Court of Tanganyika) Criminal Law—Charge of Murder—Plea—Conviction for manslaughter.

Observations on the acceptance of a plea of manslaughter in a charge of murder when the depositions point clearly to a murder having been committed.

Appellant absent, unrepresented.

Dreschfield, Crown Counsel (Uganda), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).-In this case the learned trial Judge accepted a plea of guilty to manslaughter. The record contains the following: "Information for murder, section 186 Penal Code, is read over, interpreted and explained to accused, who is required to plead thereto. He says: 'I killed without meaning to but doing an unlawful act'.

I enter this plea as one of 'guilty' of manslaughter. As the Court would not be prepared to find premeditation in this case, Mr. Kingsley, on the advice of the Court, accepts the plea".

We will say at once, having read the depositions, that the accused should have been tried for murder and had he been, provided that the evidence substantially conformed with the depositions, a finding of murder would in all probability have resulted.

The depositions of the Crown witnesses are unanimous as to there having been no legal provocation prior to the killing. We have some difficulty in understanding why learned Crown Cousel in these circumstances accepted the advice of the Court to agree to a plea of guilty to manslaughter. The learned Judge says that he would not have been prepared to find premeditation. We are at a loss to understand what is meant by this. The term premeditation does not occur in our laws and has no significance in determining whether a killing amounts to murder or manslaughter. A reference to section 189 of the Penal Code will show what the ingredients of murder are. The question as to whether a particular killing amounting to murder has been premeditated or not is, of course, a matter which is of much importance when the prisoner's case comes up for consideration in Executive Council, but that is another and quite a different matter. The accused is indeed fortunate. The appeal is dismissed.