Rex V. Samuel Abengowe (1936)

LawGlobal Hub Judgment Report – West African Court of Appeal

Manslaughter—Injection by unqualified person—Cause of death—Analyst’s report wrongly excluded—Duty of prosecution to specify precise negligence relied upon.

Held : Not sufficient evidence to show that death was caused or accelerated by unlawful act of accused, and appeal allowed.

The facts of this case are sufficiently set out in the judgment. Appellant in person.

Ivor Brace for Crown.

The following judgment was delivered :-

KINGDON, C. J., NIGERIA.

Appellant was charged with and convicted of the offence of manslaughter. The particulars of the offence as they appear on the record are that :

” Samuel Abengowe on or about 23rd day of April, 1938, caused the death of a woman Nwantu Oriaku.”

From the husband’s evidence it appears that he took his wife, the deceased, to appellant in April last. She was then suffering from sores on back and breast and had been ill for three years. Appellant, an unqualified man, filled a syringe with a red-looking liquid and pushed the nozzle of the syringe into the right buttock of the deceased and pumped the liquid into her. Deceased at once fainted and the next day the husband found that her right leg and buttock were swollen and the buttocks were peeling and looked red. The following day she died.

The matter was not reported to the police until some seventeen days after the death of the woman.

Dr. Nelson Wallace says that she appeared to have been dead about three weeks when he performed the post-mortem examination. As was to be expected the doctor could not form any opinion as to the cause of death because the state of decomposition made a physical examination difficult. The doctor did however come to the conclusion that the deceased had been suffering from syphilis for some years, and as he considered this would render her more susceptible to poison he removed a part of the liver and kidney and sent it to the Government analyst, who made a report.

When the defence sought to put in this report the Court ruled

that it was inadmissible. No reason for its exclusion was given, and we can conceive of none that would on all the facts disclosed at the trial have justified its exclusion when sought to be put in by the defence.

Although it is obvious from the record that accused was tried for the offence of manslaughter by negligence it is by no means clear what particular form of negligence was relied on by the prosecution It was obviously the duty of the prosecution to disclose with certainty and precision and without inconsistency the particular form of negligence alleged.

This has not been done, and it is impossible to gather from the record whether the negligence relied on was that (a) the needle was dirty, or (b) the liquid contained dirt, or (c) the liquid contained an overdose of arsenic or other poison.

From the brief record of the Crown Counsel’s final address to the Judge it would appear that he had not made up his mind whether the evidence justified him in submitting that the deceased had died from septicaemia or an overdose of poison injected with the object of curing syphilis, for he said ” There may have been no poison but only dirt injected.”

The appellant did not give evidence at the trial, but that does not absolve the prosecution from proving that the death of deceased was caused by or accelerated by the unlawful act of the accused.

The post-mortem examination has not revealed the cause of death. It is impossible on the evidence to conclude what the deceased died from. If poison was found in the body it would have been the duty of the Judge to consider whether it was the cause of death. It does not follow that because poison did cause or contribute to death that accused was guilty of manslaughter.

If the Judge had come to the conclusion that arsenic had been administered medicinally and caused death he would then have had to consider whether the amount administered was so excessive as to establish that the accused was guilty of manslaughter by administering an overdose.

It is impossible on the evidence to come to the conclusion that that the deceased died from an overdose of poison and it is equally impossible, in view of the rejection of the analytical report, to eliminate poison as the cause of death. That being so it is not possible to conclude that deceased died from septicaemia caused by the injection.

The evidence that septicaemia caused death is of the slightest. The sole evidence that suggests death by septicaemia is the fact that a swelling appeared, in the neighbourhood of the spot where the injection was effected, within twenty-four hours of the injection and the doctor’s evidence that it would be consistent with a dirty injection for swelling to appear within twenty-four hours. There is no evidence that a dirty needle was used or that there was any dirt in the liquid injected. It is impossible to dismiss the possibility that

the swelling may have been due to some cause other than a dirty injection, especially when it is remembered that • deceased was a syphilitic of several years’ standing and was suffering from sores when injected.

In our opinion the conviction was in all the circumstances one which could not be supported by the evidence.

The appeal is accordingly allowed, the conviction is quashed, and it is directed that a judgment and verdict of acquittal be entered.