Robin v Rex (Cr.. App. 3/1929.) [1929] EACA 134 (1 January 1929)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SHERIDAN, Actg. C. J. (Kenva); GUTHRIE-SMITH, J. (Uganda), and MUIR MACKENZIE, J. (Tanganyika).

### ROBIN $v$ .

# REX.

#### Cr. App. $3/1929$ .

Indian Evidence Act, 1872, section 122—communication during marriage.

$Held$ : —That the evidence of a wife by native custom against her husband is admissible.

#### Hunter for appellant.

#### Solicitor-General (Uganda) for Crown.

JUDGMENT.—This is an appeal from a conviction for murder on a trial before the High Court of Nyasaland. The death took place during a drinking party at which most of those present were drunk so that it is impossible to extract from the evidence a coherent account of what took place. The accused seems tohave been very truculent and quarrelled with a man called Damasco to such an extent that the others disowned him and took him to his own hut more than once. He kept on coming back and on the third occasion he was seized from behind by Willem and struggled; the deceased Timothe went to help and received a stab under the collar bone which resulted in his death. The suggestion of the prosecution is that accused stabbed Timothe in mistake for Damasco. We do not think that this is the only possible inference from the evidence. It is even more likely that although the accused came to fight with Damasco yet at the time when he struck Timothe he did not do so with any intention of killing Timothe or any other person. The blow may very well have been the result of accused's struggle to free himself from the grasp of Willem. Another point raised was that after being stabbed the deceased made a remark which is variously reported. The most credible version is that it was "Look what Robin has done." This was admitted in evidence as we think wrongly. On the authority of $R.$ v. Beddingfield, 14 Cox, 341, it was not part of the res geste. Nor is it admissible as a dying declaration there being nothing to show that deceased knew he was dying as in R. v. Goddard, 15 Cox, 7.

The last point argued was 'that evidence by the accused's wife was wrongly admitted. It is not at all clear that the woman was the accused's wife and the learned Judge appears to have held that she was not, so there is no substance in the objection.

As the point has been argued we may say that our view is that the English rule of non-admissibility of a wife as a witness against her husband never applied to a native polygamous marriage.

In the case of $R$ . v. Amkeyo, 7, E. A. L. R., 14, it was decided that communications made by a husband to his wife by native custom were not privileged, notwithstanding section 122 of the Evidence Ordinance which is the same as the English rule for Christian marriages. The reason given for the decision is the essential difference between the two unions. We think that the case is authority for holding that evidence of a wife by native custom against her husband is admissible. It is unfortunate that the words "wife" and "marriage" have been applied in this connexion. If only the woman party had been described as a concubine or something of the sort, the question could never have arisen.

The conviction is quashed and the accused acquitted.