Rex v Lujo (Criminal Appeal No. 145 of 1946) [1946] EACA 42 (1 January 1946)

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda), and SIR G. GRAHAM PAUL, C. J. (Tanganyika)

REX, Respondent (Original Prosecutor)

LUJO s/o MGOMBA, Appellant (Original Accused)

Criminal Appeal No. 145 of 1946

(Appeal from decision of H. M. High Court of Tanganyika)

Criminal Law—Murder—Death taking place two days after assault—Date of offence to be inserted in charge.

The appellant was charged with the murder of his mother on 10th January, 1946. In fact the fatal assault took place on the 10th January but the victim died on the 12th.

Held (7-8-46).—That the time to be stated in the charge should be the day on which the wrongful act was committeed and not the day on which the death occurred. Appeal dismissed.

Appellant absent, unrepresented.

Phillips, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR NORMAN WHITLEY, C. J.).—The learned trial Judge opens his finding with the following passage: -

"The accused is charged with the wilful murder of his mother Changare at Kisingani village in Tanga District on or about the 10th January, 1946. In fact the evidence shows that the fatal assault took place on the 10th but the old lady did not die until the 12th. So it would appear that the date in the information should be the 12th January, for a person cannot be said to be murdered until he or she has actually died. The error does not however, affect the validity of the information."

This is the first occasion in our experience on which it has been suggested that the date which should be stated in a murder charge information or indictment is the date when the victim died and not the date of the wrongful act by the accused. Crown Counsel before us has contended that the date stated in the charge being the date when the appellant inflicted the injury upon the deceased was correct. We agree with him that where death ensues some days or weeks after an assault the material date for the purpose of the information is the date of the commission of the unlawful act. This appears to be clear from the wording of section 205 of the Penal Code which reads: -

"A person is not deemed to have killed another if the death of that person does not take place within a year and a day of the cause of death.<br>Such period is reckoned inclusive of the day on which the last unlawful act contributing to the cause of death was done. When the cause of death is an omission to observe or perform a duty, the period is reckoned inclusive<br>of the day on which the omission ceased. When the cause of death is in part an unlawful act, and in part an omission to observe or perform a duty, the period is reckoned inclusive of the day on which the last unlawful act was done or the day on which the omission ceased, whichever is the later."

In the note to paragraph 660 at page 337 of volume 9 Halsbury's Laws of *England* the following passage appears: $-$

"In murder and manslaughter it is essential to prove that the death of the person alleged to be murdered or killed took place within a year and a day from the time when the act which caused the death was committed (in such a case the time stated in the indictment should be the day on which such act was done)."

That such should be the rule seems only reasonable and logical since one of the principal grounds for requiring particulars to be stated in an information or indictment is to give the accused notice of the case which he has to meet and what is important to him is the date upon which he is alleged to have committed the unlawful act not the date upon which the victim subsequently died. He may for instance wish to set up an alibi. We feel no doubt that the date stated in the information was the correct one.

The accused admittedly killed his mother. In his memorandum of appeal he puts forward $(a)$ that he acted under grave and sudden provocation and $(b)$ that he is a person of weak intelligence. There is no substance in either point. As to $(a)$ the deceased committed no wrongful act and even if she had the accused places the incident at ten days prior to the infliction of the fatal injuries. As to $(b)$ it was not established that the accused was legally insane. The appeal is dismissed.