Appeal Court. 13th Aug., 1938.  Appeal from conviction in Supreme Court.

 Murder-Murder or Manslaughter ?-Misdirection of .Assesor.~­Substitution of Verdict under sec. 11 West African Court of Appeal Ordinance.

Held: . The direction to the assessors not being sufficiently clear verdict substituted

. The facts are sufficiently set out in the judgment.

K. A. Bossman (with him E. P. Asafu-Adjaye) for Appellants.

 S. E. Ellis for Crown.

The following joint judgment was delivered:-

PETRIDES, C .• T., GOLD COAST, YATES AND STROTHER­STEWART, JJ.

The five appellants were tried and convicted for the murder of one Kwabena Donkor Moshie. whom we shall refer to as the deceased.

The first appellant was the Native Administration Superin­tendent of the Native Prison, Juabeng, Ashanti. The second and third appellants were Government Police Constables stationed at Juaso, Ashanti. The fourth and fifth appellants were warders working under the first appellant.

The case for the Crown was as follows:-

Deceased had been in custody from about the 27th March till the moment of his death on the 30th March, 1938, on suspicion of having stolen money and other things from the house of one Atta Buadu of Apimsu. In the forenoon and afternoon of Wednesday the 30th March, 1938, a series of brutal assaults were committed on the deceased by the first and second appellants. The assaults consisted of pouring hot water on the head of the deceased and heating him with a stick. The beatings were so persistent and so very severe that the deceased died in his cell about midnight of the same day as the result of the beatings. The body was then taken by the first, second and third appellants with the aid of two witnesses for the prosecution to a stream on the Apimsu Road about five miles from Juabeng and there buried.  

Although according to the evidence deceased died on. the 30th March the body was not discovered till the 4th April. The post-mortem took place the following day when the body was  ' in an advanced state of decomposition. Dr. Harrison, who and performed the post-mortem said that he found no evidence of any disease which might have caused death and none of the usual signs of. drowning: he could not state the cause of death but on the hypothesis that the deceased when alive was fit and strong and his body had been subjected to blows with a stick over the eye and about the body, and boiling water had been poured on his head, body and legs ,he cause of death would in his opinion be shock if he died between four to five hours afterwards. There was evidence that before deceased was arrested he was a strong healthy man. Sergeant Labi stated that when he saw deceased on the 28th March he appeared to be in normal health.

There was in our opinion evidence before the Court below to justify the conclusion that the deceased was brutally assaulted on the 30th March by the first and second appellants and he died as a result of the injuries by them.

It was contended on behalf of the third, fourth and fifth appellants that they never struck the deceased and that they took no part in the assaults committed by the first and second appellants and they should not have been found guilty of murder.

Having regard to the provisions of section 15 (2) of the Criminal Code we are satisfied that there was evidence on which all five appellants could have been found guilty of causing the death of the deceased.

It was further contended that the third, fourth and fifth appellants were subordinates and that subordinates acting under orders of their superior officers which were not necessarily and manifestly illegal were protected. In our opinion it is quite clear that the assaults complained of, if proved, were necessarily and manifestly illegal and the fact that the third, fourth and fifth appellants were subordinates was no defence to the charge.

It was further contended that there was no evidence that an v of the appellants intended to kill the deceased. Intention cannot be proved by positive evidence: it may be inferred from overt acts. It is a principle of English law that a person who does an act must be taken to have intended the natural and probable consequences of his act. There is a somewhat similar presumption created by section 13 (3) of the Criminal Code. The effect of that sub-section, on the facts in this case, is that if using reasonable caution and observation it would appear to the appellants that there would ,be great risk of the assaults causing or contributing to cause the death of the deceased they shall be presumed to have intended to cause his death unless they believed that the act would probably not cause or contribute to cause his death.

Having regard to this provision we are satisfied that there was evidence that all the appellants intended to cause the death of the deceased.

We are satisfied that there was evidence which entitled the Court below to find all five appellants guilty of murder as defined in section 232 of the Criminal Code.

'We now pass to the question of misdirection. We are satisfied that there is no evidence on the record which would have justified the conclusion that any of the appellants had formed the express intention of killing the deceased. This was eminently a case in which the assessors should have been directed as to the difference between murder and manslaughter. They were given the definition of murder according to our code but not that of man­slaughter. In the learned trial Judge's notes of his summing up we find the following:-

"I pointed out to them that if they were satisfied that the "prisoners had no intention of killing Kwabena Donkor Moshie "(bearing in mind the provisions under section 13 and the relevant " sub-sections of the Criminal Code), then it was within their province " to give their opinion that the prisoners were guilty of manslaughter.

" In this 'connexion, I told them that they could give their opinion "on the question of manslaughter with regard to all or any of the " prisoners."

This is the only passage that deals with manslaughter. Before a person can be found guilty of murder the Crown has to prove beyond any reasonable doubt not that the accused has no intention of killing the person in respect of whose death the accused is charged but that he had the intention of killing that person. By reason of section 13 (3) the assessors were entitled, if they were satisfied that it would have appeared to the appellants if they had used reasonable caution and observation that there would be great risk of the assaults causing or contributing to cause death, to presume that the appellants intended to cause the death of the deceased. It was the duty of the trial Judge to point this out to the assessors and to tell them that if they were satisfied that such was the case the presumption of intention was rebuttable if the appellants believed that the assaults would probably not cause or contribute to cause the death of the deceased. It does not appear that this was done.

The passage we have quoted makes it reasonable to suppose that the assessors may have thought that they were being directed that they could not express the opinion that the appellants were guilty of manslaughter unless they were satisfied that the appellants had proved they had no intention of killing the deceased.

It has not been established that there was any misdirection on grounds 2, 3, 4, 5 and 6 of the additional grounds of appeal.

We have been addressed by counsel on grounds of alleged misdirection other than those set forth in the original or amended grounds of appeal. We are not satisfied that there is any  substance in any of these.

It is possible that if the question of whether the offence of murder or manslaughter had been committed had been more clearly dealt with by the trial Judge the assessors would have expressed Stewart the opinion that the offence of manslaughter and not murder been established. Whilst it is certain that they would have expressed the opinion that one or the other had been committed our own view is that the proper verdict would have Been one of manslaughter. For these reasons and acting under the special power of the Court given by section 11 (2) of the West African Court of Appeal Ordinance we substitute for the verdict found by the Court below-a verdict of guilty of manslaughter.

Taking into account the evidence given in the Court below we substitute for the sentences passed by the Court below the follow­ing sentences of imprisonment with hard labour:-

                     1st appellant ...................... 15 years.

                     2nd appellant ..................... 15 years.

                    3rd appellant ........................ 5 years.

                     4th appellant ......................... 4 years.

                     5th appellant ......................... 5 years.

The sentences to run from the 27th of June the date of conviction.