Kwabena Atta V. The Queen (1953)
LawGlobal Hub Judgment Report – West Africa Court of Appeal
Criminal Law and Procedure—Homicide—Provocation—Criminal Code, sections 233 (1) and 234 (3).
Facts
Section 233 (1) provides that:—
“A person who intentionally causes the death of another person by unlawful harm shall be deemed to be guilty only of manslaughter, and not of murder or attempt to murder, if any of the following matters of extenuation are proved on his behalf, namely:—
“(1) That he was deprived of the power of self-control by such extreme provocation given by the other person as is mentioned in the next succeeding section .”
Section 234 (3) provides that:—
“The following matters may amount to extreme provocation to one person to cause the death of another person, namely:—
“(3) An act of adultery committed in the view of the accused person with or by his wife or her husband, or the crime of unnatural carnal knowledge committed in his or her view upon his or her wife, husband, or child ”.
The appellant caught his wife in sexual intercourse with his brother. He and she had words and she said that in his absence from home she had the right to marry his brother; he became annoyed and took his cutlass and told his wife to lead him to the latrine, which she did; there they had more words and he killed her with the cutlass. He then returned to his room and taking his gun went to his brother’s store and asked him to come out; the brother did and after a short discussion, he shot his brother. He was charged with murdering his brother and found guilty.
In the appeal the complaint was that the Judge erred in telling the jury that the statement of the appellant ” appeared to eliminate matters of extenuation ”, thereby creating the impression that the killing was not done in the heat of
passion.
Held
There was evidence to justify the jury in coming to the conclusion that at the time the appellant killed his brother he was not in such a state of passion as to make him no longer master of his mind; the appellant, on whom the onus lay under section 233(1) of the Criminal Code, did not show that he was in such a state at that time.
Appeal dismissed.
