Rex v Mwamere (Cr. App. No. 70/1936) [1936] EACA 139 (1 January 1936)

## APPELLATE CRIMINAL

## Before SIR JOSEPH SHERIDAN, C. J. and LANE, AG. J

## REX, Respondent ν.

## ATANAS s/o MWAMERE, Appellant (Original Accused No. 2) Cr. App. No. 70/1936

- Framing of Charges against accused persons-Contents of Charge-Second Schedule, Cr. Pro. Code-Particulars to be stated-Plea of Not Guilty-Words of plea not to be construed in derogation of plea—Evidence of accomplice needs corroboration—Cannot be corroborated by another accomplice. - **Held** $(28-9-36)$ .—(1) That a charge must be framed giving such particulars of the time and place of the alleged offence as are sufficient to give the accused notice of the matter with which he is charged.

(2) That where there are two or more accused jointly charged the Court must frame charges against each with sufficient particulars of the part played by each accused.

(3) That as already decided in Rex v. Pirmin Kunjanga (2 E. A. C. A. 64), "a plea of not guilty must be taken as a general denial and the words which a plea of not guilty should not be considered by a Court as in any sense<br>plea of not guilty should not be considered by a Court as in any sense incriminating the accused or implying any admission of guilt.

(4) That an accomplice whose evidence requires corrobbration cannot corroborate another accomplice.

The appellant was one of three persons accused of using witch medicine with intent to injure their Chief in North Kavirondo District. contrary to section 4 of Ordinance 23 of 1925.

The appellant and one other accused pleaded not guilty; the third accused, Khatendi, pleaded guilty and was convicted on his plea. He was afterwards called as a witness for the Crown. He was an accomplice and his evidence needed corroboration. This was provided, but it was that of a further accomplice, Aluka. There was further evidence which was of some assistance to the Crown case, that of Orodini, a defence witness. His evidence was, however, held to be unreliable for reasons which appear in the judgment.

Wallace, Acting Solicitor General, for Crown.

Appellant absent, unrepresented.

JUDGMENT.-In ascertaining whether the conviction in this case should be allowed to stand there is no assistance to be derived from the judgment of the trial Magistrate. The question is whether there is competent evidence of the guilt of the accused. After careful examination of the record and with the assistance the Court has had from counsel, we are of the opinion that the conviction should not be allowed to stand. The evidence of Aluka s/o Ideti involves Atanas in a plot to bring about the death of the Chief by witchcraft. Aluka said he was the servant of Atanas and consequently obliged to do

whatever he was ordered to do by his master. This may be so, but he was clearly an accomplice and it is settled law in this country that his evidence requires to be corroborated before a conviction can be sustained on it. There is also the evidence of Khatendi s/o Oreki indicating that Atanas was in the plot to kill the Chief. He was a co-accused of Atanas who pleaded guilty. Against Atanas he was a competent witness though like Aluka he was an accomplice whose evidence required corroboration. He cannot corroborate Aluka nor can Aluka corroborate him, it being decided law that an accomplice cannot corroborate another accomplice. We have therefore to examine the record to discover whether there is corroboration of this tainted evidence.

The only evidence worth considering in this respect is that of Orodini s/o Aulata. His evidence purports to involve Atanas it is true, but there is one fatal defect in it and that is his statement that the event to which he spoke, "happened over a year ago." The complaint suggests that the alleged plot to kill the Chief took place in May, the month before the trial, the witness (3rd accused) Khatendi said he was very vague about the date, but it was this year. Another witness, Zakaria s/o Mwemere, said, "I went with Atanas, the 2nd accused, to the boma of Obwor, 1st accused. That was about three months ago, I think, but I am not sure. It was this year." Unfortunately the Magistrate, so far as his judgment reveals, has made no attempt to weigh the evidence, and the evidence in this case, particularly having regard to the nature of the charge, required careful weighing.

This is a case in which the Magistrate should have framed charges with particulars of the part alleged to have been played by each accused and the approximate date on which the offence was alleged to have been committed.

The obligation to frame charges is clear from the Second Schedule to the Criminal Procedure Code, and it is elementary that a charge should contain such particulars as to the time and place of an alleged offence as are reasonably sufficient to give the accused notice of the matter with which he is charged.

It also appears to us, so far as anything can be gathered from the judgment, that the Magistrate took into consideration the statements made by the accused in answer to the charge. This he should not have done. As was held in Rex v. Pirmin Kunjanga (2 E. A. C. A. 64), "A plea of not guilty must be taken as a general denial, and the words which are construed as the plea cannot also be construed in derogation of the plea." Having listened to what the accused said and realized that it did not amount to an unequivocal plea of guilt his statement should have been disregarded, indeed it would have been better had it not been recorded once its import was realized. The conviction and sentence must be quashed, and, acting in our revisional power, the conviction and sentence in the case of the first accused is also quashed. We do not order a new trial for the reason that the evidence when examined does not support the conviction. The conviction and sentence in the case of the third accused who pleaded guilty is confirmed as from the date of conviction.