Rex v Etiboiti (CRIMINAL APPEAL No. 46 OF 1939) [1939] EACA 124 (1 January 1939)

## COURT OF APPEAL FOR EASTERN AFRICA

## BEFORE SIR JOSEPH SHERIDAN, C. J. (KENYA), WHITLEY, C. J. (UGANDA) AND SIR LLEWELYN DALTON, C. J. (TANGANYIKA)

## REX, Respondent

#### versus

# IBWASI s/o ETIBOITI, Appellant CRIMINAL APPEAL NO. 46 OF 1939

### (Appeal from conviction by H. M. High Court of Uganda)

Criminal law—Murder—Manslaughter—Malice—Intent to cause grievous harm—Infirmity of deceased.

Appellant appealed from a conviction of the murder of his wife. The appellant kicked, presumably with his bare foot, the deceased in the stomach and thereby ruptured her spleen which was much enlarged. The cause of death was heart failure following haemorrhage caused by rupture of the spleen. The assessors gave their opinion that all natives in the district knew of the danger of<br>kicking or striking a person in the stomach. There was no evidence that the kicks in the absence of an enlarged spleen would have caused grievous harm to a normal healthy woman.

Held $(13-5-39)$ .—That the Court will not presume that a prisoner has knowledge that a person is suffering from disease unless such knowledge is admitted or properly proved. (Conviction of murder reduced to one of manslaughter.)

Appellant in person.

$\ddot{i}$

Aubrey, Crown Counsel, for the Crown.

JUDGMENT (delivered by Sir Joseph Sheridan, C. J.).—This appeal has been argued on the basis that the assault on the deceased was such that the appellant must be deemed to have intended that grievous harm should be caused thereby and that for the purpose of the submission the deceased must be regarded as having been a normally healthy woman. This was a fair approach to the consideration of the case by the learned Crown Counsel, for we are quite satisfied that despite the opinions expressed by the assessors, this Court will not presume that a prisoner has knowledge that a person is suffering from disease unless such knowledge is admitted or properly proved. Recently in a case on appeal at the Tanganyika Sessions of the Court of Appeal we expressed ourselves similarly and referred to the note under the heading "Ruptured spleen" on page 51 of Starling's Indian Criminal Law reading-

"In cases where the injured person has some bodily deformity unknown to the assailant, e.g. an enlarged spleen ... and the assailant did not intend to cause death the offence committed may be that of causing simple hurt even though death ensue."

In Illustration (b) to S. 300 of the Indian Penal Code the matter $\frac{1}{2}$ is set out with great clarity-

"A, knowing that $Z$ is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury, $Z$ dies in consequence of the blow.

A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that $Z$ is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he did intend to cause bodily injury, is not guilty of murder if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death."

The question then that arises in this case is whether it can be said that the assault on the deceased (the deceased being taken to have been a normally healthy woman) was with the intention of causing grievous harm. Crown Counsel has strenuously contended that the evidence supports such a conclusion. We are not in agreement with him nor do we think that a conviction would have been had in this case were it not that the appellant was assumed to have had some special knowledge that all Eteso natives have enlarged spleens and as to this we have already stated our view and referred to the basis on which the appeal was argued.

Now we would ask as we asked during the hearing of the appeal without receiving a convincing answer what evidence is there that the kicks administered to the woman presumably with a bare foot, in the absence of the enlarged spleen would have caused grievous harm to a normally healthy woman. Would a doctor have been prepared to say that kicks in such circumstances would probably have resulted in grievous harm? The doctor was not asked to express his opinion on this all-important matter.

Ruptured spleen was the cause of death and it is safe to assume that had the spleen not been enlarged it would have been at least doubtful if any serious harm would have resulted. It is a matter of common knowledge that when the spleen is its normal size it is well protected by the ribs.

A conviction for murder cannot stand. We reduce the charge to manslaughter and sentence the appellant to three years hard labour.