Rex V. Zoalim Frafra (1938)

LawGlobal Hub Judgment Report – West African Court of Appeal

Murder contra. section 221 of Criminal C ode- —P ro vocation reducing verdict to one of ” Guilty of Manslaughter “—Misdirection of Assessors by Trial Judge—Did the attempt by the Appeal Deceased unlawfully to remove the Appellant’s wife from his fromcustody constitute a ” violent assault and battery ” under conviction section 234 (4) of the Criminal Code and warrant reduction byto a verdict of guilty of manslaughter?

Held: Petrides, C.J., dissenting, that on the facts the appellant was

guilty of manslaughter only.

The Court in pursuance of section 11 (2) of the West African Court of Appeal Ordinance substituted for the verdict of the Court below a verdict of guilty of manslaughter.

There is no need to set out the facts.

The Acting Solicitor-General for Crown. R. E. Phipps for Appellant.

The following judgments were delivered : YATES, J.

In this appeal, during the argument of Mr. Phipps, counsel

for the defence, the Court gave him leave to add a further ground

of appeal, viz. : Misdirection, the misdirection being as follows :—

” I told them (the Assessors) that if they were satisfied

a violent assault and battery was committed upon the ” prisoner’s wife by the deceased in the presence of the prisoner ” and that he had no other means of saving the woman’s life

from her assailants, and then and there he shot the arrow ” then they were entitled in law to reduce the murder to ” manslaughter “.

This is clearly a misdirection, for the law states that if a man intentionally kills another who in his presence is committing a violent assault and battery upon his wife this amounts to extreme provocaticn and reduces tha crime to manslaughter.

There is undoubted evidence in this case to show that an assault and battery were committed in the prisoner’s presence upon his wife, and the question is, was such assault and battery sufficiently violent to reduce the crime to manslaughter? Violence is a question of degree. The evidence here is slight but it must be

considered, and it is to the effect that the assailants caught hold of the prisoner’s wife in order to take her to her father—out of the custody and control of her husband in order that the marriage between them might be dissolved, because the prisoner’s father had incurred the debt of a cow which it was said the prisoner should have redeemed. The wife not unnaturally resented this and did not want to part from her husband—and had the prisoner not shot his arrow when he did, it is impossible to say to what lengths the assault and battery upon the wife would not have gone.

It is difficult to say to what extent .the minds of the Assessors would have been influenced—had the law been stated to them correctly—or what the finding of the learned trial Judge would have been had he interpreted the law correctly; and it may well be that owing to the primitive nature of the tribe in question they would have held that this was a violent assault and battery as would justify them in reducing the crime to manslaughter. I am therefore of opinion the misdirection was material and the crime should be reduced to manslaughter

STROTHER-STEWART, J.

The fact that the word ” violent ” appears in front of the words ” assault and battery ” in our Code, shows, in my opinion, that mere assault and battery would not be sufficient provocation to reduce murder to manslaughter. There must be something more. In this case I think there was something more. There is evidence which tends to show that the intention of the deceased was to take the wife back to her father, so that her dowry might be recovered, and the debt owing to deceased thereby paid. To drag a wife from her husband, by force, for such a purpose would, in my view, constitute violence, and the fact that the person who had taken hold of her for that purpose was prevented by accused from fully carrying out his intention, does not, in my opinion, reduce the quality of the act contemplated by him, and partly carried out, from being violent. I think if this point of view had been put before the Assessors, and taken into consideration by the learned Judge, a different decision might have been arrived at.

I think the appeal should be allowed and a conviction for manslaughter substituted for murder.

PETRIDES, C.J., GOLD COAST.

Counsel for appellant submitted that the learned trial Judge misdirected the Assessors when he told them ” that if they were ” satisfied that a violent assault and battery was committed on ” the prisoner’s wife by the deceased in the presence of the ” prisoner, and that he (the prisoner) had no other means of

saving the woman’s life from her assailants and then and there ” he shot the arrow then they were entitled in law to reduce the ” murder to manslaughter.”

The Acting Solicitor-General admitted that this constituted a misdirection but contended that the misdirection was not material as the defence had not in cross-examination suggested that the deceased had, committed a violent assault and battery in the view of the appellant upon his wife, within the meaning of section 234 (4) of the Code. He submitted that the only evidence of any assault was a statement made by the wife in her evidence for the defence that ” they caught hold of me but did not take me to my father.” He contended that this statement did not amount to an allegation that deceased had committed a violent assault and battery on her.

It is quite clear that the defence of violent assault and battery upon the wife in the presence of appellant was not adumbrated by the defence in cross-examination. Further the accused did not in his statement of the 2nd February to the. Police allege that his wife had been assaulted. At the trial his counsel stated that appellant would not give evidence or make a statement from the dock.

The only evidence of assault and battery was the wife’s statement ” they caught hold of me “. It will be observed that she did not say that they caught hold of her with violence. In my opinion it is impossible to read into her statement the slightest suggestion that she was violently assaulted.

I regret I am unable to agree with my learned brethren, but in my judgment there was no evidence before the Court below that the deceased committed a violent assault on the wife of the appellant. Having come to that conclusion it follows that there was no extreme provocation within the terms of section 234 (4) of the Criminal Code which would have justified the learned trial Judge finding the accused guilty of manslaughter and not murder by reason of that sub-section.

In my opinion the misdirection was in respect of a matter which, on the evidence before the Court, was immaterial, and the appeal should accordingly be dismissed.

JUDGMENT OF THE COURT. PETRIDES, PRESIDING JUDGE.

The judgment of the Court is that under the special power of the Court given by section 11 (2) of the West African Court of Appeal Ordinance there be substituted for the verdict found by the trial Judge a verdict of guilty of manslaughter.

This Court sentences the appellant to imprisonment with hard labour for five years to date from the 28th of March, 1938.