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Criminal Law-Charge of murder-No evidence of preconceived intent to kill Defence of intoxication not considered.

Appellant was co-habiting with deceased and anxious to marry her but disappointed in his hopes took gin and later that day invited her to go with him to a place to gather mushrooms. On the way he drank some palm-wine at her uncle's farm. His evidence was that at the place where the mushrooms were the drink began to affect him and thereafter he had no recollection of what happened until the moment he found himself beside her covered in blood. The deceased died of gunshot wounds; appellant was carrying a gun. The trial Judge directed the assessors that there was no evidence to warrant manslaughter; he held that appellant took the woman out in order to kill her and that the defence of drunkenness could not be considered; and he convicted the appellant of murder. On appeal;-

Held: The conduct of the appellant negative any preconceived intent to kill, and the failure to consider whether the evidence of intoxication might have negative any intention to kill and warranted a verdict of manslaughter was a serious misdirection.

Cases cited:-

(1) R. v. Kweku Kotoro,8 W.A.C.A. 88.

(2) R. v. Kwabena Bio, W.A.C.A., 30th May, 1945. Appeal by convicted person: No. 42/1952.

Koi Larbi for the Appellant.

Holland, Crown Counsel, for the Crown.

The following judgment was delivered:

Jackson, Ag. C.]., Gold Coast. The appellant was convicted of murdering a young woman named Akua Gyinae by shooting her with a gun and was sentenced to death. The trial was had by a Judge with Assessors at Kumasi.

The appeal is grounded upon one ground of law alone, namely misdirection by the learned Judge in declining to consider in any circumstances on the facts before him a verdict of manslaughter.

The facts were that the deceased was a married woman living apart from her husband. The appellant's case was that believing she had finished with her husband, and was willing to marry him, he had cohabited with her, and was anxious to marry her. Shortly before the material date he was disappointed in his hopes, and in that disappointment took a certain amount of illicit gin on the day in question, and later that day invited the woman to go with him to a farm to pick some mushrooms.

There was no evidence to rebut that evidence; there was some to corroborate the fact namely that in the presence of her mother he had invited the deceased to help him collect those mushrooms. They left the village, and appellant's evidence was that they then stopped awhile at her uncle's farm where he partook of some palm wine. He was carrying a gun which he says he handed over at one time to the woman, and took it back from her when they came to the place where the mushrooms were found.

At this stage he says the drink began to affect him, and that from that moment [pg174] and until the moment when he found himself lying beside her and covered in blood, he had no recollection whatsoever of the events which intervened. After an abortive attempt at suicide he says he returned to the village and saw the deceased's uncle Ababio who advised him to clear out and later surrendered himself to the police where he made two statements narrating these events.

At the outset of the trial Counsel for the prosecution indicated to the Court that its case was murder without justification. and that the question of manslaughter need not be considered.

Notwithstanding the evidence of the accused the learned judge clearly directed his mind in the same way when Counsel for the appellant was addressing the Court at the close of the trial.

Following this attitude the learned judge intimated that he would direct the assessors that there were no facts evidenced upon which a verdict of manslaughter could be returned.

Following his summing up and after hearing the opinions of the assessors that the accused was guilty of murder, the learned judge held that the appellant deliberately and intentionally shot the deceased, that he took her to the bush for that purpose, that he gave way to a desire for revenge and that in consequence a defence of drunkenness could not be considered.

If there had been evidence upon which to found his finding of a preconceived intent to kill we would not quarrel with that conclusion of law, but in our opinion, no such intent could be inferred from the conduct of the appellant, i.e. apart from a possibility of a motive of revenge as the result of frustration prior to leaving' the village to look for the mushrooms. Indeed the whole conduct of the accused negatives such preconceived intent.

Following the decision of this Court in the case of R. v. Kweku Kotara (1), it is impossible to say that if the learned judge had properly directed himself he might not have returned a verdict of manslaughter on the ground that intoxication had negative any intention to kill. This principle applies whether the trial be held by jury or with assessors (R. v. Kwabena Bia (2)). There was evidence of intoxication which remained unrebutted ami should have been considered by the learned judge, His failure to consider it amounted to serious misdirection.

For these reasons we quash the conviction for murder and substitute one of manslaughter and substitute for the sentence passed at the trial one of ten (10) years' imprisonment with hard labour.