Rex v Shimanyolay and Another (Cr. Apps. Nos. 70 and 71 of 1938) [1938] EACA 135 (1 January 1938)

## COURT OF APPEAL FOR EASTERN AFRICA

## BEFORE SIR JOSEPH SHERIDAN, C. J. (Kenya); WHITLEY, C. J. (Uganda), and KNIGHT-BRUCE, Ag. C. J. (Tanganyika).

## REX. Respondent (Original prosecutor)

## PAULO S/O SHIMANYOLAY AND LEGIDIO S/O LASALA, Appellants (Original accused) Cr. Apps. Nos. 70 and 71 of 1938

Appeals from convictions by H. M. Supreme Court of Kenya.

Criminal law-Murder-Cause of death-Common intention- Evidence—Corroboration—Use of depositions—Penal Code (Kenya), section 22.

Appellants appealed from a conviction of murder of one A., a forest guard of whose body only certain parts were recovered and these some days after his death. The medical evidence as to the cause of death was inconclusive as to whether it was caused by a gun-shot or otherwise. The first appellant made a confession to a magistrate in the terms following, viz.: "I killed a buck in the forest near Milima and I was caught by the forest guard who said: 'I must arrest you'. I was afraid and fired my gun at him. He collapsed. He had a *panga* in his hand. Legidio $s/o$ Lasala took hold of the panea and as the forest guard tried to get up Legidio struck him twice on the neck with the *panga*. He died. We then hid the body in the bushes and left it there". The conviction of the second appellant was based on the statement of his co-accused and inter alia the depositions of two of the witnesses for the prosecution whose evidence at the trial was contrary to their depositions.

Held $(23-8-38)$ .-(1) That the conviction of the second appellant should be set aside on the ground that the trial Judge should not have considered the depositions of Crown witnesses as proof of the facts deposed to therein which facts were contrary to the evidence of these witnesses at the trial.

(2) That assuming in favour of the first appellant that the cause of the death of the deceased was blows of a panga administered by the second appellant and not the shot fired by the first appellant, nevertheless on<br>the facts shown in the confession there was a common intention on the part of the first appellant and the person alleged to have inflicted the blows, and the first appellant was guilty of murder whether the cause of<br>death was the shot or the blows.

**Budheo** for the appellants.

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

JUDGMENT (delivered by Whitley, C. J.).—During the course of the argument in this appeal it became clear to us that the conviction of the second appellant Legidio could not stand. His conviction the learned trial Judge found rested on the statement made by his co-appellant, Paulo corroborated by other evidence. Some of that other evidence was found by the learned Judge in the depositions of two witnesses Simiti and Karori. In his judgment he said: "Their

depositions taken with Muteshi's evidence tend to corroborate the confession of Paulo to Mr. Sweatman as against Paulo and Legidio". The two witnesses referred to were allowed to be cross-examined as hostile witnesses and the evidence given by them in the Supreme Court was in contradiction of what they said in their depositions. In these circumstances, their evidence should have been excluded from consideration and in any event what they said in their depositions was not evidence in the Supreme Court. The case against Legidio depending mainly as it did, on the confession of his co-appellant, was a weak one and it is at least doubtful whether the learned Judge would have convicted him without taking into consideration the inadmissible evidence to which we have referred. Before the conviction against Legidio could be allowed to stand, we should have to be satisfied that without that evidence the learned Judge must in reason have come to the same conclusion and that we are unable to say. Legidio in consequence must be acquitted. The question of conviction of the first appellant Paulo, we find a difficult one and the difficulty turns on whether there is sufficient evidence to establish (a) that the cause of death was the shot fired by Paulo; or (b) if (a) $(a)$ is not proved and assuming the truth of what Paulo said that another man had struck the decased twice with a *panga* was Paulo responsible under the doctrine of common intention. The principal evidence against the appellant is his own confession made before Mr. Sweatman, Second Class Magistrate. In it, the appellant says: "I killed" a buck in the forest near Milima and I was caught by the forest guard, who said: 'I must arrest you'. I was afraid and fired my gun at him. He collapsed. He had a *panga* in his hand. Legidio $s/o$ Lasala took hold of the *panga* and as the forest guard tried to get up, Legidio struck him twice on the neck with the *panga*. He died. We then hid the body in the bushes and left it there". If corroboration of this confession were required it is to be found on the record in the evidence of the witness, Muteshi, who said that Paulo informed him that his head was bad, that he had killed an askari and that this was on Wednesday, the day after the buck was killed. In deciding the question of the cause of death, the medical evidence is not very helpful for reasons for which we cannot blame the doctor, for the human remains were in such a state when he received them, that it was difficult for him to pronounce with any certainty on the cause of death. He found that the nose and upper and lower jaws were missing, that they must have been detached in a peculiar fashion because the rest of the skull was complete and as far as he could tell from very careful examination uninjured; he expressed the opinion that the injuries must have been caused by violence of considerable force applied extremely locally, that a thing like a sharp or blunt instrument would be unlikely to have caused them and that he could imagine them being caused by "an explosive bullet, a softnosed bullet, acting very locally; or a charge of shot of fairly big calibre fired at close range". As to whether a person receiving such injuries would survive for any length of time he said: "A person receiving the nose and jaw injuries it would depend if big vessels of jaw or neck were blown away; if they were not damaged or injured death might not result for some time, if at all. If they were, death would be very rapid". The medical evidence may be said to corroborate the appellant's confession that he shot at the forest guard at close range and that the latter collapsed. In view of what the doctor said and in the absence of any other evidence on the point except what Muteshi said, and assuming the truth of what Paulo said as to another person having struck the decased with a panga one cannot say whether death resulted from the shot wound. The appellant said that Legidio after the shot wound struck the forest guard twice with a *panga* which he took from the person of the forest guard and he died. Although this statement with the other evidence on the record, we find insufficient to convict Legidio, we are entitled to consider what the appellant Paulo says on this point in examining the case on the basis of common intention. The question then on this basis is whether the forest guard may not have been killed by the *panea* blows and if so the appellant cannot be convicted of murder unless it be shown that a common intention to cause death existed between the appellant and the person who struck the *panga* blows. We are not agreed between ourselves as to whether Paulo was speaking the truth when he said that another man was present and struck the deceased with a panga after the shot wound. It is for that reason that it becomes necessary to consider the question of common intention. Assuming, however, that Legidio did strike the deceased with a panga and that, although Paulo had previously shot him, the wound with the *panga* was the actual cause of death, we are of the opinion that Paulo was guilty of murder by reason of common intention. Section 22 of the Penal Code provides that "when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose each of them is deemed to have committed the offence". Such intention may be formed at any time prior to the commission of the offence and may be inferred from all the surrounding circumstances. Assuming, as we have already said, in favour of Paulo that the actual cause of death was the two blows with the panga by Legidio, the position seems to be this. When the forest guard surprised them cutting up the buck, Paulo clearly formed the intention either to kill or at least to cause grievous harm. In pursuance of that intention he shot and hit, blowing away the nose and both jaws of the victim. Legidio thereupon must be taken to have formed a similar intention as evidenced by his striking the injured man with a panga. It seems to us that the only reasonable inference to be drawn from these actions is that when Paulo shot, Legidio immediately associated himself with and adopted Paulo's unlawful intention which thereupon became the common intention of both of them. It can hardly be suggested on the evidence and in view of the actions of Paulo that he did not approve and associate himself with Legidio's act and although not of itself sufficient to establish a common intention the fact that both proceeded to dispose of the body is a further factor which the Court is entitled to take into account in conjunction with the other circumstances. It seems a reasonable inference from what took place that both Paulo and Legidio, jointly engaged in cutting up the buck in connexion with which they knew an offence had been committed, were prepared to go so far as to cause grievous harm to avoid arrest in the event of their being detected, feeling no doubt that in such a lonely and

remote spot there would be no risk of what they did ever coming to light. Intention can, ordinarily, only be inferred from actions, surrounding circumstances and probabilities. We are satisfied that there is here ample evidence to justify a finding that the death, if in fact caused by Legidio, was caused in pursuance of the common intention of Paulo and Legidio. This case is we think distinguishable from that of Rex v. Mohamed bin Ali (Criminal Appeals Nos. 132 and 133 of 1935). In that case it was merely a matter of a petty dispute suddenly arising in connexion with some injury to a tree whereas here we have two men being surprised by a person in authority whilst occupied in doing something which they knew of thought to be contrary to law. Their position seems to me analogous to that of poachers in England being caught by a gamekeeper and thereupon shooting him and the circumstances point much more strongly to the existence of a common intention than those which existed in Mohamed bin Ali's case.

If on the other hand Legidio in fact took no part and Paulo alone caused the death he would of course be guilty of murder so that it follows that whichever view one takes of the facts in the present appeal we are of the opinion that Paulo is guilty of murder and that accordingly the learned trial Judge was right in convicting him and his appeal should be dismissed.