Criminal Law-Intent to
murder-Insanity-Crown not
calling medical· evidence-Defence
of
" black-out" -Criminal
Code, sections 27 and
28.
Sections 27 and 28 of the
Criminal Code read as
follows:-
"27. Every person is
presumed to be of sound
mind, and to have been of
sound mind at any time which
comes in question, until the
contrary proved.
"28. A person is not
criminally responsible for
an act or omission if I the
time of doing the act or
making the omission he is in
such a state mental disease
or natural mental infirmity
as to deprive him of
capacity to understand what
he is doing, or of capacity
to control his actions,
01; capacity to know that he
ought not to do the act or
make the omission.
" A person whose mind, at
the time of his doing or
omitting to do an a is
affected by delusions on
some specific matter or
matters, but who is I
otherwise entitled to the
benefit of the foregoing
provisions of this section:
is criminally responsible
for the act or omission to
the same extent as if i real
state of things had been
such as he was induced by
the delusions believe to
exist."
The appellant was convicted
of murder. The facts were
that he left his room the
small hours of the morning
and went to his wife's room,
and injured! badly with a
pickaxe-head, and she died
of the injuries. There was
no evidence of motive. The
Crown did not call any
medical evidence on his
soundness mind (this is
presumed under section 27 of
the Criminal Code until the
court. is proved). The
defence was that the
appellant suffered from a "
black-out 'j the time of the
offence; but he did not call
the warder or the doctor who
had I under observation in
the prison; that defence
stood on his own evidence 01
There was evidence from
Crown witnesses that the
appellant became ill and I
pain in the abdomen and was
at times morose and
unfriendly, but not of
becoming excited or violent
or of his ever having
suffered from loss of mem or
a" black-out ". In his
evidence appellant said he
woke up and did not k~ what
happened afterwards, and
learnt of the occurrence in
the morning what I saw a
crowd of people; he was
asked by someone why he had
quarrelled" the deceased but
made no answer because, he
explained, he did not know
i1 had killed her-which went
to show that he was himself
when asked. The i Judge did
not believe his evidence
that he had a black-out at
the time of offence, and
found the appellant guilty
of murder.
In the appeal it was argued
for him that:(1) there was
no evidence of intent to
murder;
(2) the Judge was wrong in
not accepting the defence of
insanity in spi15 the
evidence in support;
(3) the law did not require
the defence to call medical
evidence; that was duty of
the prosecution.
Held:
(1) A person is taken to
intend the natural and
probable consequent of his
acts; intent to murder was a
necessary inference to be
drawn from the of the
appellant in this case. [pg154]
Cases cited:-
(1) R.
v.
Fred de Vere,
2
Cr. A.H., at p. 20.
(2) R.
v.
Oliver Smith,
6
Cr. A .R., at p. 20.
(3)
R.
v.
Casey,
32 Cr. A .R., 81.
Appeal by convicted person;
No. :{R17.
(2) It is a presumption of
law that every person is of
sound mind; there is no need
for the prosecution to call
evidence to prove the sanity
of the accused person. It is
for the defence to prove
insanity; and it was open to
the defence to call the
warder and the doctor who
had had him under
observation.
(3) The evidence made it
clear that the illness the
appellant suffered from was
of the body, not of the
mind. The trial Judge did
not accept the appellant's
evidence of a black-out at
the time of the offence,
rightly, having regard to
the evidence in the case.
The apparent absence of
motive was not necessarily
an indication of insanity;
there might have been a
motive known only to the
appellant.
M. A. Odesanya
for Appellant.
Fatayi Williams,
Crown Counsel, for the
Crown.
The following judgment
was
delivered:
Jibowu, Ag. S.P.]., Nigeria.
In this case the appellant
was convicted before Brown,
]., at the sessions of the
Supreme Court of Nigeria,
Enugu Division, holden at
Nsukka on the 31st May,
19!)2, of the murder of his
wife Janet Dim and was
sentenced to death. He
appeals against his
conviction and the four
grounds of appeal filed on
his behalf by Mr. M. A.
Odesanya, Counsel assigned
to him by the Court, are as
follows;-
•• 1. The learned trial
Judge erred in Law by
convicting the accused on
the charge in the absence of
any evidence of intent to
murder.
•• 2. The learned trial
Judge misdirected himself on
the Law and on the facts
when he stated that" the
mental' black-out' which he
asserts however, was
apparently one of short
duration and was not in
keeping with the previous
history of his illness. I am
therefore unable, in the
absence of evidence
supporting it, either from
the past or subsequent
history of the accused, to
accept this assertion which
is one that could be made in
connection with almost any
crime ", when in fact there
was abundant evidence on
record to sustain the
defence of Insanity .
•• 3. The learned trial
Judge erred in Law when by
implication he held that it
was the duty of the Defence
to call medical evidence,
when in fact the law makes
it the duty of the
Prosecution to call medical
evidence as to the mental
condition of the accused.
••
4. The decision is
altogether unwarranted,
unreasonable and cannot be
supported having regard to
the evidence before the
Court."
With regard to the first
ground of appeal, there was
uncontradicted evidence of
the prosecution witnesses
before the learned trial
Judge which proved beyond
any reasonable doubt that
the appellant left his room,
proceeded to his wife's
room, where he attacked his
wife in the early hours of
the morning of the 17th
November, 1951, with a
pickaxe-head and caused
serious injuries to her
face, jaws and shoulder and
she died shortly afterwards
from the resulting shock and
haemorrhage according to
medical evidence.
Intent to murder was a
necessary inference to be
drawn from the acts
committed by the appellant
and the rule of law is that
a man is taken to intend the
natural and probable
consequence of his own acts.
We therefore find no
substance in this ground of
appeal.
There is also no substance
in the third ground of
appeal as it does not
reflect the correct state of
the law. Insanity is a
defence that may be raised
by the accused and the onus
of proving the defence rests
on the accused. This is the
[pg
155] result of the
presumption of law that
every man is of sound mind
until the contrary is
proved. See section 27 of
the Criminal Code of
Nigeria. It is therefore not
necessary for the
prosecution to lead evidence
to prove the sanity of the
accused person .•• It is for
the defence to prove
insanity not for the
prosecution to prove
sanity," said the Lord Chief
Justice of England in
Rex
v.
Fred de Vere (1).
At one time the practice of
calling prison doctors to
prove insanity arose and the
practice was referred to by
the Lord Chief Justice in
his judgment in
Rex
v.
Olive)' Smith
(2). as follows:-
•• The question came up
seven or eight years ago,
when the practice arose of
the Crown calling the prison
doctor to prove insanity.
All the Judges met and
resolved that it was not
proper for the Crown to call
evidence of insanity, but
that any evidence in
possession of the Crown
should be placed at the
disposal of the prisoner's
counsel to be used by him if
he thought fit. The question
is, is it right or is it
not, where there is some
suggestion of insanity, for
counsel for the Crown to ask
for a ruling as to whether
or not there is' evidence of
insanity to go to the jury?
The Court stated that the
only general rule that could
be laid down was that
insanity, if relied upon as
a defence, must be
established by the
defendant."
This judgment was referred
to in
Rex
v.
Casey
(3). which decided that the
practice of calling the
prison doctor as a witness
for the Crown on the
question of insanity in
order that he might be
cross-examined by the
Counsel for the defence is
irregular and should not be
followed but that the ruling
laid down in
Rex
v.
Oliver Smith
(2) be followed.
We shall now deal with the
second ground of appeal
which was the only ground on
which the Court considered
it necessary to call upon
the Crown Counsel to reply.
As the ground of appeal
alleges a misdirection in
law and facts, it becomes
necessary to refer to the
evidence before the learned
trial Judge.
Victoria Dim, the elder
daughter of the appellant,
denied the defence Counsel's
suggestion that the
appellant used to behave or
act as a crazy man before
the incident in question.
She stated that the
appellant did not talk
nonsense nor did he say that
people were after him. She
stated further that the
appellant was ill and used
to groan as if in pain, and
that he used to be angry and
scold them, meaning his
children. She had heard the
appellant and the deceased
quarrel before but not when
he was sick.
Patience Dim, the younger
daughter of the appellant,
also testified, on
crossexamination, that the
appellant used to scold them
and that Bennet used to help
the deceased in looking
after the appellant when
ill. She gave the nature of
the illness as •• pain in
the belly" and she did not
know of any previous fight
or quarrel between the
appellant and the deceased.
Esther Wilson, who had been
a neighbour of the appellant
and the deceased and was on
friendly terms with them for
about four years, testified
that the appellant used to
be morose and silent
sometimes and would not say
good morning. She stated
further that the appellant
acted abnormally but that
she did not discuss his
condition with the deceased.
She further stated that she
would agree that he was
insane if a doctor said so.
Ngene Ezeibedo, who had
stayed for a year with the
appellant, stated that the
appellant was suffering from
internal trouble due to
poisoning and that he used
to sit quietly and give no
response to greetings. He
further stated that the
appellant had attacks of
pain in the body from time
to time but that he was not
violent or excited. He also
testified that the appellant
went to his home about seven
years ago and returned about
two years ago.
Bennet Dim, a nephew of the
appellant, also testified
that the appellant returned
to Nkpologwu in 1950 after
his illness; that he noticed
a change in him; that he
used to sit down in one
place and would not respond
to greetings
[pg156] and that he
complained of pain in the
body moving around his
belly. He testified further
that the appellant showed no
sign of excitement or other
sign of illness than pain
and that he was not violent.
