Rex v Kaliebi and Another (Criminal Appeals Nos. 107 and 108 of 1941) [1941] EACA 73 (1 January 1941)

# COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda) and SIR HENRY WEBB, C. J. (Tanganyika)

REX, Respondent (Original Prosecutor)

#### ν. OKUTE s/o KALIEBI AND GADIMBA s/o OUMO, Appellants

### (Original Accused Nos. 1 and 6)

#### Criminal Appeals Nos. 107 and 108 of 1941

Appeals from decision of H. M. High Court of Uganda

Criminal Law—Murder—Manslaughter—Cause of death—Common intent—Death due to shock resulting from two independent beatings—Acquittal under sections 320 and 314 of the Uganda Criminal Procedure Code of convicts who have not appealed.

Appellants appealed from convictions of murder. The deceased died from shock resulting from injuries received in two separate and independent assaults. The first assault was made by the first appellant and three others who were convicted of manslaughter but did not appeal. The trial Court held that in this assault the first appellant intended to cause grievous harm but that the other assailants had not so serious an intention. Although the injuries inflicted in this assault were serious there was no evidence that they were sufficient of themselves to cause death. After the first assault and independently of it the second appellant acting in a manner which clearly showed his intent to cause grievous bodily harm at the least committed a second and independent assault upon the deceased who was in a weakened condition as a result of his prior beating and caused a fracture of his breast bone which was one of the injuries from the cumulative effect of which the deceased had died.

Held (29-8-41).—(1) The second appellant having with intent to cause grievous bodily harm inflicted an injury on one who was already in a weak state was properly convicted of murder since death resulted from this injury supervening upon the weakness of the victim even<br>though that injury would not by itself have killed a healthy person.

(2) That since on the evidence it should have been held that the injuries caused by the first appellant and the other parties to the first assault might possibly have caused death<br>only by reason of the further injury inflicted subsequently by the second appellant and in the absence of any evidence of a subsisting intent in common with the second appellant in<br>the absence of any evidence of a subsisting intent in common with the second appellant in<br>the second assault, the first appellant an to have been convicted of murder or manslaughter.

Appeal of the first appellant allowed.

Appeal of the second appellant dismissed.

Convictions of manslaughter against the other parties to the first assault set aside under sections 314 and 320 of the Uganda Penal Code notwithstanding the fact that they had not appealed.

Appellants absent unrepresented.

### Spurling, Crown Counsel, for the Crown.

JUDGMENT (delivered by SIR HENRY WEBB, C. J.).-This is a difficult case turning mainly on the question of common intent. Unfortunately this aspect of the case does not appear to have been fully appreciated by the prosecution, and several questions the answers to which might have made the position much clearer were never put to the witnesses.

The appellants with four others (one of whom was acquitted) were charged with the murder of Kaliebi s/o Kirya. It was proved that two sons of the deceased had been arrested upon the charge of stealing a cow; the first appellant, with the accused Erika, Firipo, Farasi and Okurie took the deceased to a place where meat had been buried and ordered him to dig it up. When he refused the first

appellant struck him three times with a heavy stick, according to two of the witnesses on the back, shoulder and neck, according to another on the back, shoulder and chest, and according to another on the back, neck and arm: the blows are described as having been very hard. Erika, Farasi and Okurie also beat him but not severely. The deceased was then made to dig up the meat and was taken to the Muruka Chief's place, and it is said that when he got there he was in a weak condition. There was no evidence of the distance of this place from the scene of the beating, or of the time taken to cover it. At this stage the second appellant came up carrying a heavy knobbed stick and, according to one witness, poked the deceased in the small of the back and in the chest, and kicked him in the stomach: according to another poked him in the chest and stomach: according to a third struck him on the chest and thigh and kicked him in the stomach, and according to a fourth, struck him three times on the back, poked him in the chest and then knocked him in the stomach. It seems hardly possible that there was not some conversation between the second appellant and the first party; but no question was asked about this, and so far as the evidence goes this assault was committed without a single word being said by anyone. The second appellant then went away: the others proceeded to take the deceased to the Gombolola Chief, but he became unable to walk, and was tied to a pole and carried to the Gombolola prison and thence to the dispensary. When the party reached the dispensary he was found to be dead. According to the medical evidence the cause of death was shock due to (1) a fracture of the right ulna, (2) a transverse fracture of the breast bone, and (3) the fracture of six ribs, on the left side, probably caused by more than one blow. The learned trial Judge accepted the evidence as to the assaults by the first appellant Erika, Farasi and Okurie and the subsequent assault by the second appellant as being substantially correct. He said, "I will consider the case of accused 1, Okute, first. This man struck certainly three blows with a heavy club: his intention must have been at the very least to cause grievous harm, and if death ensued he must be guilty of murder: death did result from the effect of this and other assaults, and therefore I must find this accused guilty of murder". With regard to Erika, Farasi and Okurie he said, "... none of these persons used weapons likely to cause death or grievous harm and it is a not unreasonable assumption that none of these accused anticipated or had reason to anticipate that death or grievous harm would result. However, death having ensued they must at the least be guilty of manslaughter as they were committing an unlawful act", and, with regard to the second appellant, "Gadimba used his stick on a man who was already obviously in a bad state: the stick must have been a heavy and dangerous weapon. Again I must find that the use of such a dangerous weapon presupposes an intention to cause at the least grievous harm, and if death ensues the assailant is guilty of murder".

In our opinion no difficulty arises in the case of the second appellant. From the evidence it seems certain that it was he who caused the fracture of the deceased's bone, which was one of the injuries from the cumulative effect of which death resulted, and, as the learned Judge rightly held, a person who inflicts injuries upon someone who is already in a weak state, whether by reason of illness or a previous assault by another, is guilty of murder if death results from such injury supervening upon the weakness of the victim, even though the last injury would not by itself have killed a healthy person.

But the case of the first appellant, as also the cases of Erika, Farasi and Okurie, present a difficult problem. It was not proved that the injuries which they inflicted would, of themselves, have caused the death of the deceased, without the further injury inflicted by the second appellant and the learned judge has found that as between the first appellant and Erika, Farasi and Okurie, though there was a common intention to beat the deceased, there was not a common intention to cause him grievous harm (a view which was certainly extremely favourable to the last three) that latter intention he found by inference from the weapons that they used, to have existed only in the minds of the first and second appellants. But

if the injuries caused by the first appellant may possibly have caused death only by reason of the further injuries inflicted by the second appellant-which we think must be taken to be the effect of the medical evidence—then the first appellant can only be convicted of murder if it be held that he and the second appellant had a common intention to cause grievous harm to the deceased. The learned Judge rightly found that each of them had an intention to cause grievous harm, but, in our opinion the fact that two people have the same intention does not necessarily mean that they have a common intention, for the circumstances may be such as to show that each has acted independently of the other. Where several persons together beat another, then, though each may have a different reason, and though some may join in the beating later than others, it is plain that all have what the law calls a "common intention", which does not necessarily connote any previous concerted agreement between them. But where, as in the present case, first a party of four beat the victim, and then, after some interval of time and in a different place, another person comes up and beats him, then, even though his reason may have been the same as theirs, it seems to us to be impossible to say on the evidence of such facts alone, that the first party, whose acts are finished, the purpose for which they were done accomplished, are necessarily to be deemed to have had a common intention with the new-comer so as to be guilty of murder if the combined result of the two beatings is to cause death of the victim. How, in such circumstances, can the first party be said to have had a common intention with a person whose intervention in the affair they (so far as the evidence in this case goes) can have had no reason to anticipate? We must not be taken to lay it down as a universal rule that there can be no common intention unless the first assailants had reason to anticipate that others would or might come and continue the assault; if the proper inference from the evidence was that the first party approved of and associated themselves with the action of the new-comer, that might well be taken to indicate the existence of a common intention then arising between them. If it were established that the members of tribe A had a practice of beating any member of tribe B whom they found in their lands, then indeed there would be such a common intention as might make those who first beat a member of tribe B responsible in law if that beating, combined with a second beating by other members of tribe A, caused his death. But here there was nothing to show that when the first appellant and his party beat the deceased they had any reason to suppose that the second appellant would meet them and the deceased, or, if he did, that he would beat him: they had beaten him to make him dig up the meat, and he had done so, and had carried it to the Chief's place, when, as the learned Judge correctly puts it. ... committed "a violent and unprovoked independent assault" Gadimba. upon him. Nor, on the evidence given, is there anything to show that the first appellant and his party associated themselves with the assault committed by the second appellant, or even if they had an opportunity of doing so: in the circumstances of this case such an association cannot be inferred from their presence on the scene, for they were there for the purpose of taking the deceased to the Gombolola Chief, and, as we have already pointed out, the evidence does not reveal whether or not anything was said which would have tended to show that they approved of the second assault, or perhaps even suggested it, or, on the other hand, that they disapproved of it and protested against it.

We are therefore of opinion that the first appellant was wrongly convicted of murder, and we set aside his conviction. For the same reasons as apply in his case, Erika, Farasi and Okurie should not have been convicted of manslaughter, and, although they have not appealed, by virtue of the power conferred upon this Court by sections 320 and 314 (1) (a) (ii) of the Criminal Procedure Code we set aside the conviction for manslaughter in the case of each of them. It will be open to the Crown to take such proceedings against the first appellant, Okute, and against Erika, Farasi and Okurie as may be deemed proper. The appeal of the second appellant, Gadimba $s/o$ Oumo, is dismissed.