Rex v Ndolo (Criminal Appeal 14/1935.) [1935] EACA 80 (1 January 1935)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, P., HALL, C. J. (Uganda), and WEBB, J. (Kenya).

> REX, Respondent, IBUTO s/o NDOLO, Appellant. Criminal Appeal 14/1935.

Law—Homicide—Defence Criminal $\quad\text{ of }\quad$ drunkenness—Penal Code, section 14, 190.

The appellant said the deceased were drinking with others, both were very drunk; the appellant asked for more drink but was refused and spilt the drink. The deceased and the appellant then stood up and the appellant pulled a heavy stick from the thatch of the hut and hit the deceased on the head causing injuries from which he died; the appellant then ran away. The trial Judge held that, apart from the evidence that the appellant was very drunk, there was nothing to show that he was incapable of forming a specific intention $(R. v. Meade, 1909)$ -K. B. 896), and that-evidence that his mind was so-affected by drink that he more readily gave way to violent passion did not rebut the presumption that a man intends the natural consequence of his act. The appellant was found guilty of murder. He appealed on the ground that he did not intend to kill or cause grievous harm to the deceased.

$Held$ (15-4-35).—That where the accused is proved to have killed the deceased the presumption of murder arising under section 190 remains unless it is rebutted by the facts of the case. Appellant absent and unrepresented.

Turton, (A. G. Uganda), for the Crown.

JUDGMENT.—The learned Attorney General of Uganda has said everything that could be said for the appellant on the question of his (the appellant's) drunkenness at the time the crime was committed and how far it could be said to afford a defence in reducing the crime to manslaughter. The fact of killing in this case has been amply proved raising a presumption of murder under the Penal Code (section 190). Unless the facts of the case rebut that presumption, the presumption that the appellant committed murder remains. In our opinion that presumption has not been rebutted and the appellant must be deemed not only to have been capable of forming the intention to cause grievous harm which in fact resulted in death but also to have had the intention of doing so.

The appeal is dismissed.