Rex v Nunguyashi (Criminal Appeal No. 99 of 1941) [1941] EACA 55 (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 v.

MAZIKU S/O·NUNGUYASHI. Appellant

Criminal Appeal No. 99 of 1941

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

Criminal Law — Homicide — Murder — Manslaughter—Provocation—Insulting words—Tanganyika Penal Code, section 192—Conviction—Misdirection.

Appellant appealed from a conviction for murder. He was an old man of irritable temperament who was on duty as a night watchman when he threw a spear and fatally wounded the deceased because of his annoyance at words spoken to him by the deceased, who was one of a party of young men passing by returning from a dance. The words used literally mean "your mother's legs" and were in common use among natives of the district as a vulgar jocular quip. They were not seriously insulting but were disrespectful when used by a young man to an old man. The trial Judge directed himself and the assessors that mere words, however gross, can never amount to provocation enough to reduce murder to manslaughter.

Held $(25-7-41)$ .—(1) That the learned Judge had stated the law too widely, for there may be cases whereby reason of the circumstances words, if sufficiently insulting, will suffice to reduce a charge from murder to manslaughter (vide $R$ , $v$ , Abderehemani bin Brahim, 2 E. A. C. A. 81, R. v. Samsoni Kafausa, 6 E. A. C. A. 154).

(2) That ordinarily mere vulgar abuse will not suffice to reduce a charge of murder to manslaughter.

(3) Judging the appellant not as an old man easily deprived of his self control but rather as an ordinary person of the class to which he belonged, the words used in the present case were not sufficient provocation to reduce the charge from murder to manslaughter.

Appeal dismissed.

Appellant absent unrepresented.

Spurling, Crown Counsel, for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.). The accused wasapparently carrying out his duties as a night watchman when he was baited by the deceased, who was one of a party of young men passing by. He had given no offence to any of the party. He would, however, seem to have been an old man of an irritable temperament and he took offence at the expression used to him to the extent that he threw his spear, fatally wounding the deceased. The learned Judge held that it was established law that "mere words, however gross, can never amount to provocation enough to reduce murder to manslaughter". We are not prepared to say that the words uttered in the present case would constitute sufficient provocation to reduce the charge from murder to manslaughter, judging the accused not as an old man who was easily deprived of his self control but rather as an ordinary person of the class to which he belonged. At the same time, having regard to the provisions of section 192 of the Penal Code, which includes in the definition of provocation "insult of such a nature as to be likely, when done to an ordinary person ..... to deprive him of the power of self-control and to induce him to assault the person by whom the act or insult is offered", we think that the learned Judge has stated the law too widely. Ordinarily it is true that mere vulgar abuse such as happened in this case will not suffice to reduce a charge from murder to manslaughter, but there may be cases where by reason of the circumstances words, if sufficiently insulting, will. Vide R. v. Abderehemani bin Brahim, 2 E. A. C. A. 81, R. v. Samsoni Kafausa, 6 E. A. C. A. 154. We need not comment on the defence of accident, for we agree that the evidence does not support it. The appeal is dismissed.