Rex v Brahim (Criminal Appeal 23/1935.) [1935] EACA 81 (1 January 1935)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before HALL, C. J. (Uganda), WEBB, J. (Kenya), and FRANCIS, J. (Uganda).

REX. Respondent (Original Prosecutor)

31.

ABDEREHEMANI BIN BRAHIM, Appellant.

(Original Accused).

Criminal Appeal 23/1935.

(Appeal from the High Court of Tanganvika.)

Criminal Law—Homicide—Manslaughter—Provocation—Insulting words-Penal Code, section 192-Statement of accused hefore Committing Magistrate not put in evidence.

The appellant was convicted of the murder of his wife; he admitted the fact, but in his statement before the Committing Magistrate, which was not put in evidence at the trial, he alleged that in the course of a quarrel she said to him: "Go to your mother, I have got another man, X. . . You a man? What have you done?" and that he then "Got angry and used the knife".

$Held$ (18-4-35).—

(1) That the statement of the appellant ought to have been put in evidence:

(2) That the word "insult" in section 192 of the Tanganyika Penal Code includes a verbal insult: and that the words used by the deceased might amount to provocation within that section.

Conviction quashed and re-trial ordered.

Appellent absent and unrepresented.

Nihill (S. G. Uganda) for the Respondent.

JUDGMENT.—We have come to the conclusion that there must be a new trial in this case before a Court differently constituted. At the trial, the statement of the accused in the Court below was not put in evidence. That statement contained an allegation that the deceased used certain words to accused suggesting impotency which might be sufficient provocation to an "ordinary" native" to reduce the offence from murder to manslaughter. We have not had the benefit of the opinion of the assessors in the Court below as to the severity of this provocation on an "ordinary native", and we feel unable, in the absence of such assistance, to come to a definite conclusion on this point. Further the trial magistrate misdirected himself when he said:

"I consider no words used in a quarrel between man and wife can justify a killing". There is no note of the summing up but presumably he must have so charged the assessors.

The Solicitor-General in argument agrees with this Court, that "insult" in section 192 of the Tanganyika Penal Code includes a "verbal insult".

We again reiterate our opinion that when a native is charged with murder a plea of guilty should not be accepted.

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