Rex v Gwempazi (Criminal Appeal No. 77 of 1943) [1943] EACA 32 (1 January 1943)

## COURT OF APPEAL FOR EASTERN AFRICA $\mathcal{L} = \{1,2,3,4\}$

$\overline{\phantom{a}}$

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), GRAY, C. J. (Zanzibar) and $\mathcal{L} \cdot \mathcal{L}$ $M$ ANNING, J. (Uganda) $\varphi \to \varphi \varphi$

## REX, Respondent (Original Prosecutor) $v$ .

GWEMPAZI s/o MUKONZHO, Appellant (Original Accused) Criminal Appeal No. 77 of 1943

## Appeal from decision of H. M. High Court of Uganda

Criminal Law-Penal Code, Sections 208, 231 (c), 317, 374-Intent to cause. death.

The appellant appealed from a conviction under section 208 of the Uganda Penal Code of attempting unlawfully to cause the death of his wife. The points upon which the case is reported appear sufficiently from the judgment of the Court of Appeal.

*Held* (17-5-43).—(1) In a prosecution under Section 208 of the Penal Code it is not sufficient to prove that it would have been a case of murder if death had ensued; it must be shown that the accused had a positive intention unlawfully to cause death.

(2) A conviction of arson could not be substituted by a Court of Appeal under the (2) A Conviction of arson could not be substituted by a Court of Appear inter the<br>provisions of Section 179 (2) of the Criminal Procedure Code (as amended by Ordinance<br>No. 1 of 1940) because under Section 317 of the Penal the same as that for the offence under Section 208 of the Code and therefore arson cannot<br>be held to be "a minor offence" in relation to the offence under Section 208.

Conviction altered from one under Section 208 of the Penal Code to one under $\sim$ Section 231 (c) of the Penal Code. $\sim$

R. v. Múhoja s/o Manyenye, 9 E. A. C. A. 70 followed.

Sentence reduced from imprisonment with hard labour for ten years to imprisonment. with hard labour for two years. $\mathcal{L}_{\mathcal{L}}$ $\mathcal{L}_{\mathcal{L}}$ $\mathcal{L}_{\mathcal{L}}$ $\mathcal{L}^{\text{max}}_{\text{max}}(x)$ $\mathcal{L} = \{1,2,3,4,4,5,4,6,1\}$ $\mathcal{A} = \{1,2,3\}$

Appellant present, unrepresented.

$\mathcal{A}_{\mathcal{A}_{\mathcal{A}}}$

$\leq \epsilon_{\rm{max}}$

Windsor-Aubrey, Acting Solicitor General (Uganda), for the Crown.

JUDGMENT (delivered by GRAY, C. J.).—The appellant has been convicted under section 208 of the Uganda Penal Code of attempting unlawfully to cause the death of his wife. He does not dispute the fact that during the night he set fire to a house occupied by the woman and her children, but he alleges that neither his wife nor his children were inside when he did so. The learned trial Judge found as a fact that the woman and her children were inside the house and the evidence fully supports that finding. In his judgment the learned Judge says: "On this I find that he intended to burn his wife who was within, or acted with such reckless disregard for her safety as amounts to murderous malice". This reference to murderous malice is evidently to the circumstances which are declared by section 196 of the Code to establish malice aforethought.

Section 208 of the Code reads as follows: -

"Any person who (1) attempts unlawfully to cause the death of another; or (2) with intent unlawfully to cause the death of another does any act, or omits to do any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life; is guilty of a felony".

As the definition of "attempt" in section 374 of the Code shows, an essential ingredient of an attempt to commit an offence is a specific intention to commit that offence. "When a person, intending to commit an offence, begins to put

his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such extent as to commit the offence, he is deemed to attempt to commit such offence." Therefore, as said in R. v. Cruse (1838) 8 C. & P. 541, in a prosecution under section 208 of the Code it is not sufficient to prove that it would have been a case of murder if death had ensued; it must be shown that the accused had a

positive intention unlawfully to cause death.

In this case the learned Judge has not definitely held that the appellant had any such positive intention and the evidence raises a doubt as to whether such was his intention. It would appear from the evidence that, although he may have been indifferent as to what was likely to be the fate of the inmate, his sole intention was to set fire to the house. His conduct immediately after setting fire to the house tends to negative the suggestion that he set fire to it with the deliberate intention of causing the death of any of the inmates. We are therefore of the opinion that a conviction under section 208 of the Penal Code cannot be upheld.

It remains to be considered whether on the evidence the appellant can be convicted of any other offence in view of the provisions of section $179$ (2) of the Criminal Procedure Code (as amended by Ordinance No. 1 of 1940). As under: section 317 of the Penal Code the punishment for arson is the same as that for the offence under section 208 of the same Code, arson cannot be held to be "a minor offence" in relation to the offence under section 208.

On the other hand, it is clear from the evidence that in setting fire to the house the appellant acted in a manner so rash as to endanger the life of his wife or as to be likely to cause harm to her. We are therefore of the opinion that the appellant is guilty of an offence under section 231 (c) of the Penal Code. Following the decision of this Court in R. v. Muhoja $s/o$ Manyenye (9 E. A. C. A. 70) we accordingly alter the conviction to one under that section and the sentence to one of two years' imprisonment with hard labour.