Rex v Gabriel (Cr. App. No. 111/1935.) [1936] EACA 36 (1 January 1936)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), ABRAHAMS, C. J. (Tanganyika), and FRETZ, Ag. C. J. (Zanzibar).

REX. Respondent (Original Prosecutor)

## $v.$ GABRIEL, Appellant (Original Accused).

## Cr. App. No. 111/1935.

Criminal Law-Evidence-Misreception-Statement by deceased as to cause of death elicited in cross-examination-Not dying declaration—Law of Nyasaland:

The appellant was charged with the murder of one Chikwaza. A witness, who found Chikwaza wounded, was asked in crossexamination about a statement made to him at the time by Chikwaza to this effect: "I have been wounded by a man whom I do not know. He is known to James's sister Alone. Alone was asking me whether her mother was at the beer drink." In re-examination this witness added that Chikwaza said the man had protruding eyes. There was nothing to show that at the time he made the statement the deceased believed himself to be in danger of death so as to make it a dying declaration.

$Held$ (14-11-35).—That evidence of the statement of the deceased was inadmissible.

Appellant absent, unrepresented.

Vaughan, Ag. A. G., Zanzibar, for the respondent.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.),-An important point emerged in the course of the arguments in this case namely whether there was a misreception of evidence, or rather whether the learned judge in arriving at his conclusion that the appellant was proved to be guilty rested his decision on certain evidence which was elicited in cross-examination which evidence we shall refer to in detail later. Turning to the opinions expressed by the assessors the first assessor said, "I rely on the evidence of Alone and what the deceased said." The second assessor said, "According to Chikwaza's statement when he said the person who wounded him had protruding eyes." The learned judge was impressed by the opinions of the assessors. In the course of his judgment he said, "Alone described his clothing. So, it was elicited in cross-examination of Constable Edward, did Chikwaza very shortly afterwards. Chikwaza stated the man had protruding eyes. One of the assessors agrees that the accused has such eyes. It is slight protrusion but distinctly noticeable" and again "The constable arrived at Akunoganyama's hut shortly afterwards where he found the accused,

who had arrived a moment or two before, dressed as described by Chikwaza". This brings us to the statement alleged by Edward to have been made by Chikwaza. This statement is to be found at pages 15 and 16 of the typewritten record commencing with the enquiry addressed by Edward to Chikwaza, "What has happened to you". In answer to this question Chikwaza proceeded to give an account of what happened saving inter alia that his assailant had protruding eves and describing the manner in which he was dressed. This is the statement to which one of the assessors referred in his opinion. The question arises whether this statement is admissible evidence to prove the case against the accused. The law of evidence in force in Nyasaland is the English law and before this statement can be accepted for the purpose we have mentioned, it must be shown to be a dying declaration satisfying the requirements of English law; the deceased must be proved to the satisfaction of the judge to have been at the time of making the declaration, in actual danger of death and to have abandoned all hope of recovery. There is no evidence of this requirement having been satisfied and particularly there is no evidence of the deceased's mentality in This being the state of affairs the evidence of what the matter. Edward stated the deceased said should have been rejected by the learned judge as matter inadmissible for the purpose of proving the guilt of the appellant. We appreciate that the statement was elicited in cross-examination, but that fact cannot make it evidence for the purpose referred to. It may of course be regarded as evidence to the credit of Edward and possibly counsel's object in questioning him on the point was to discredit his evidence by suggesting that he fabricated the statement, or that he arrested the accused not on account of the description but because of some other information. We are therefore faced with this position. The learned judge rested his finding of guilt at least to some extent on this statement and we are unable to say that had he excluded it from his consideration he must in reason have arrived at the same conclusion.

It is in this statement that there is a reference to the protruding eyes mentioned by one of the assessors and in the judgment.

As for the document referred to as the dying declaration, it did not contribute to the Court's finding. It contains no description of the assailant and merely corroborates that the witness Alone was present when the crime was committed. We would observe that this document was not signed or in any way admitted by the deceased to be his statement and was not properly produced in evidence, being produced by the doctor who, though he was present when it was taken, cannot be assumed to have identified it.

Because of the misreception of the evidence to which reference has been made and its effect it is not necessary for us to

examine the case at greater length. Had it been otherwise it would have been necessary for us to consider and weigh such matters as the absence of motive, the kind of knife used, the absence of blood from accused's clothes, the conduct of Alone, the evidence as to time and place in so far as it raised a possible defence of alibi, and the manner in which the dying statement formally taken differs from the statement testified to by Edward, the former containing no description of the accused and the latter a detailed description.

For the reason we have given, namely that we are unable to say that had the learned judge excluded from his consideration in arriving at his decision that the appellant was guilty the statement spoken to by the witness Edward, he must in reason have come to the same conclusion, the appeal is allowed and the accused acquitted.