Rex v Tubere (Criminal Appeal No. 84 of 1945) [1945] EACA 16 (1 January 1945)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Joseph Sheridan, C. J. (Kenya), Sir Norman Whitley, C. J. (Uganda), and Sir John Gray, C. J. (Zanzibar)

### REX, Respondent (Original Prosecutor)

# TUBERE s/o OCHEN, Appellant (Original Accused) Criminal Appeal No. 84 of 1945

## (Appeal from decision of H. M. High Court of Uganda)

Criminal Law—Murder—Serious assault with stick—Intention of causing grievous harm.

The appellant appealed from a conviction of murder. It was proved that he had seriously assaulted the deceased with a heavy walking stick, causing severe injuries from which the deceased died shortly afterwards.

*Held* $(16-4-45)$ .—(1) A person using such a stick and causing such injuries must be deemed to have the intention of causing grievous harm.

(2) In arriving at a conclusion as to whether malice aforethought has been established the Court must consider the weapon used, the manner in which it is used and the part of the body injured.

(3) Although an inference of malice will flow more readily from the use of a spear or a knife than from the use of a stick it must not be assumed that the Court takes a lenient view where a stick is used.

#### Appellant present, unrepresented.

Hobson, Crown Counsel (Uganda), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The decision of this appeal turns on a question of fact. The learned trial Judge and one of the assessors believed the evidence identifying the accused as the person who assaulted the deceased. The assault was of a serious nature and caused severe injuries, from which the victim died shortly afterwards. The stick, which the accused does not deny being his, is quite capable of causing such injuries and a person using such a stick and causing such injuries must be deemed to have the intention of causing grievous harm. With regard to the use of a stick in cases of homicide, this Court has not attempted to lay down any hard and fast rule. It has a duty to perform in considering the weapon used, the manner in which it is used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the use, say, of a spear or a knife than from the use of a stick; that is not to say that the Court takes a lenient view where a stick is used. Every case has, of course, to be judged on its own facts. The same remark applies as regards the view which this Court takes where a ruptured spleen is the cause of death. The appeal is dismissed.