Rex V. Kweku Mensah & Anor (1941)
LawGlobal Hub Judgment Report – West African Court of Appeal
Murder—Abetment—Section 47 (1) of Criminal Code.
Facts
[Three soldiers in company killed a man. Two accused were found guilty but the third soldier was not before the Court and his identity was unknown. There was inconclusive evidence of the respective role of each soldier. There was evidence of stabbing by one man and abetment by another. There was no evidence to show third man instigated, abetted, assaulted or assented to the use of a knife or had any idea that a knife would be used. There was strong evidence that one of the accused either did the murder or abetted therein. The trial Judge directed the Jury to say whether they believed the prosecution witness and if they did, and they were satisfied that the fight witnessed waa the one when deceased Was killed then both accused were guilty of murder.]
Held
(i) That there was no evidence that third man had abetted the murder as it appeared that the–crime actually committed was not a probable consequence of the endeavour to commit nor substantially the same, as the crime which the abettor intended to abet, and the only offence under section 47 (1) of the Criminal Code which could be held against the third man was assault;
- As it is impossible to say which of three roles was filled by second accused he is entitled to the benefit of the doubt;
- In view of the strong evidence against first accused with a proper direction to the jury ft is possible he wouldihave been convicted of at least abetting but as it is not possible to say that that would inevitably have been the conclusion of the jury he is also entitled to the benefit of the doubt.
Appeal allowed; conviction and sentence of each accused quashed and a judgment and verdict of acquittal entered.
