Rex v Kalonga (Criminal Appeal No. 211 of 1948) [1948] EACA 46 (1 January 1948)

# COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Barclay Nihill, C. J. (Kenya), EDWARDS, C. J. (Uganda), and MARK-WILSON, AG. C. J. (Tanganyika)

## REX. Respondent (Original Prosecutor)

# MAKANDI s/o KALONGA, Appellant (Original Accused)

## Criminal Appeal No. 211 of 1948

## (Appeal from Decision of H. M. High Court of Tanganyika)

Criminal Law—Murder—Evidence—Chance Medley—Proper direction by Judge -Manslaughter-Sentence.

The appellant was convicted of the murder of an old woman named Jalo. The incident which ended in the fatal assault took place at the conclusion of a beer party. The appellant smashed an empty gourd on the head of the deceased and afterwards inflicted other blows on her with a stick. On the medical evidence there was no serious injury to the deceased's head, but the other injuries caused her death. The facts appear sufficiently from the judgment below.

Held (25-10-48).—(1) That arising from the evidence of one witness (a woman) there was a strong probability that the smashing of the gourd on the deceased's head was the signal for the outbreak of something in the nature of a general fight between the appellant and the two women in which blows were given and exchanged.

(2) (a) That killing in chance medley may or may not be murder according to the circumstances.

R. v. Ayes (R. & R. 166) cited in Archbold, 31st Edition p. 870 referred to.

(b) In such case a proper direction would be: If the prisoner entered into a contest with an unarmed person intending to avail himself of a deadly weapon, it would amount to murder; but if he did not enter into the contest with the intention of using it, the question would be whether he used it in the heat of passion in consequence of an attack made upon him, in which case it would be manslaughter.

R. v. Smith (8 c. & P. 160) cited in Archbold, 31st Edition p. 870 followed.

(3) That it was not apparent that the learned trial Judge had directed his mind or the minds of the assessors to this feature of the case, which was an issue arising from the evidence and the appellant's unsworn statement.

Conviction of murder quashed. Conviction of manslaughter substituted.

(4) As regards sentence great blame attached to the appellant who in his retaliation: on the two women showed a brutal and callous nature.

Appellant sentenced to ten years' H. L.

### Appellant absent, unrepresented.

## Bennett, Crown Counsel (Tanganyika), for the Crown.

JUDGMENT (delivered by SIR BARCLAY NIHILL, C. J.).—The appellant was convicted of the murder of an old woman named Jalo in the High Court of Tanganyika. The incident which ended in this woman receiving certain injuries which subsequently proved fatal took place at the conclusion of a beer party at which all the persons present, except possibly the appellant's son who came late, had been drinking. From the evidence it would appear that the appellant, incensed by the fact that because the beer was finished his son could not have any seized an empty gourd which the deceased had in her hand and smashed it on her head. The deceased's son Kalonga had left the place before this occurred and what happened immediately afterwards depends on the evidence of the woman Kapeziwa. As in most beer party cases the evidence is somewhat confused but it is certain, if Kapeziwa's recollection is accurate, that the appellant inflicted at least three blows on the deceased with a stick on the head and on the abdomen after she had fallen down. Kapeziwa says she went to the deceased's rescue and attacked the appellant with a pestle. The appellant wrested it from her and struck her three times with a stick so that she lost consciousness. Later when she recovered consciousness she found the deceased (her mother) lying dead.

The medical evidence revealed that the deceased at the time of the incident was suffering from pneumonia. She had no serious head injury but there was a wound on her chin which had fractured the mandible and four of her ribs were fractured, two on her right side and two at the back near the vertical column. In the doctor's opinion this fracture of the ribs hastened death and that as the pneumonia was not in an advanced stage the old woman might have recovered from it if she had not been injured. He also said that in any case in his opinion the fracture would have proved fatal as the broken ribs were pressing on the lungs. On the above evidence the learned trial Judge was clearly right in finding. that the appellant was responsible for causing the death of the deceased and the only question that arises on this appeal is as to whether he has been rightly convicted of murder.

Evidence given by some of the prosecution witnesses strongly suggested that at the time he committed the act the appellant was under the influence of a narcotic drug but there was other evidence, including that of the appellant's son, who denied that his father ever smoked bhang. Taking into account the quite lucid and detailed account given by the appellant himself at his trial of the events which led up to his attack on the deceased, we are not prepared to say that the learned trial Judge was wrong in coming to the conclusion that the appellant was not so under the influence of alcohol or drugs at the time as to make him incapable of forming the necessary intention.

The appellant in his memorandum of appeal would have us believe that in his unsworn statement at the trial he was only repeating the version of events already given by the prosecution witnesses and that in fact he remembers nothing. We cannot regard this as a serious submission and in any case the appellant's version of what occurred differs in more than one respect from the prosecution's story and is more to the appellant's advantage.

There is one aspect of the case, however, which, with respect, we think the learned Judge insufficiently appreciated, namely that there arises from the evidence of the woman Kipeziwa (P. W. 1) when taken and compared with the appellant's unsworn statement a strong probability that the smashing of the gourd on the head of the deceased was the signal for the outbreak of something in the nature of a general fight between the appellant and the two women in which blows were given and exchanged. Kapeziwa herself admitted striking the appellant on the back with a pestle and the latter asserted that the deceased struck him. first with a stick and that seizing this stick he set about her. It is true that Kipeziwa said that when the appellant broke the gourd on the deceased's head "he had a stick with him" but if that was the case it is surprising that he did not use it to beat the deceased.

Killing in chance medley may or may not be murder according to the circumstances. In the case of Rex v. Ayes (R. & R. 166) which is cited in Archbold 31 Edition at p. 870, where after mutual blows had been exchanged the prisoner knocked the deceased down, and after he was upon the ground, stamped upon his stomach and belly with great force and thereby killed him, this was held to be manslaughter only. As was said in Rex v. Smith (8 C. & P.

$160-162$ ) also cited in Archbold on the same page the proper direction to a jury is to ask them "Did the prisoner enter into a contest with an unarmed man intending to avail himself of a deadly weapon? If he did it will amount to murder. But if he did not enter into the contest with the intention of using it, then the question will be did he use it in the heat of passion in consequence of an attack made upon him? If he did it will be manslaughter".

The circumstances of the present case are by no means easy to assess and it would appear to be a border line one. Our difficulty in upholding a conviction for murder is that it is not apparent either from the judgment or the notes of the summing up that the learned Judge directed either his own mind or the minds of the Assessors to this feature of the case. We can readily understand how this occurred because what was uppermost in everybody's mind at the trial was the state of the appellant's mind, and as we have indicated on that issue the learned Judge on the evidence came to a perfectly proper conclusion. At the end of his summing up the learned Judge asked the Assessors two questions (1) did the accused kill Jalo? (2) If so was he insane at the time so as not to know what he was doing? Had he put the issue as to whether the appellant used the stick on the deceased during the heat of passion caused by blows he received during the course of a sudden fight the Assessors might or might not have answered it in the Appellant's favour, but that the question should have been put both to the Assessors and to the mind of the learned Judge himself is clear, because it was an issue which certainly arose from the evidence and the appellant's unsworn statement. Had it been put the learned Judge might not have convicted the appellant of murder and, that being so, it is evident that the conviction for that offence cannot stand.

As regards sentence great blame attaches to the appellant. He may have been to some extent under the influence of alcohol or drugs or both but this cannot excuse the violence of his conduct. It was his act in smashing the gourd on the deceased's head which started the trouble and in the nature and extent of his retaliation on the two women he showed a brutal and callous nature.

The conviction of murder is quashed and we substitute a conviction of :manslaughter.

The appellant will go to prison for ten years with hard labour.

(Note.—This judgment was delivered before the publication of the judgment of Lord Goddard, C. J., in Rex v. Semini (1949), 1 A. E. R. 233, where it was held that the doctrine of chance medley had no longer any place in the law of<br>homicide However, this note is added as one of general interest and it is not intended to be inferred that their Lordships of the Court of Appeal for Eastern Africa would have arrived at a different conclusion in this case had the decision in R. v. Semini been before them.—Editor.)