Appeal
Court. 28 October, 1937.
Appeal from Conviction by High
Court.
Conviction for murder contrary
to section
319
of the Criminal Code Question
of what warrants reduction to
manslaughter discussed and
R. v. George Hayward
followed.
Held: The facts in this case did
not warrant reduction and appeal
dismissed.
The facts are sufficiently set
out in the judgment.
I vor Brace
for Crown.
J.
C.
Ticehurst
for appellant.
The following joint judgment was
delivered :-
KINGDON, c.]., NIGERIA, PETRIDES,
c.]., GOLD COAST, AND BUTLER
LLOYD, J.
In this case the appellant was
tried by Callow, Acting
Assistant Judge of the High
Court, sitting at Aba, for the
murder of one Arungwa Nwokoma.
He was found guilty of that
offence and sentenced to death.
The appellant has never denied
killing the deceased. But the
question which arose at the
trial and was duly considered
by the Judge and which we have
had to consider on appeal is
whether the killing amounted to
murder or whether (to quote the
words of section 318 of the
Criminal Code) the appellant did
the act which caused the death
in the heat of passion caused by
sudden provocation, and before
there was time for his passion
to cool, and so is guilty of
manslaughter only. The case is
near the border line, and it is
only after allotting Counsel to
the appellant and hearing very
helpful argument from Counsel on
both sides that we have comp to
the conclusion that the trial
Judge's finding is correct. The
facts found by the Judge are
that the deceased was the head
of the compound in which
appellant dwelt. The appellant
had a quarrel with one Adiele
over a woman, and on the day in
question the two were fighting
when deceased arrived and
stopped the fight, using a
switch to part them. Deceased
then walked away towards his
house, but appellant immediately
ran into his own house, seized
his matchet, ran out again and
killed the deceased with his
matchet. The appellant himself
was severely wounded some time
after attacking deceased. There
is ample evidence to support
these findings, and to entitle
the trial Judge to reject, as he
did, the story of far greater
provocation by the deceased,
which the appellant gave as his
version. One of the most
material questions of fact in
the case is, " what was it that
deceased used to part the
appellant and Adiele?" The
prosecution witnesses all speak
of it as a
It
stick," but it must be
remembered that this term is
merely the interpretation of a
native word, and it was most
essential to inquire as to the
nature of the
It
stick"; evidence as to such
nature is given by two of the
prosecution witnesses. The
second witness, Akpagu,
described it as
It
a small stick," and the third
witness, Nweke, said, "He hit
them with a sort of switch." On
this evidence the trial Judge
found "that the deceased parted
the combatants by using a
switch." We see no reason to
doubt the correctness of this
finding and we accept it.
Turning now to the law to be
applied, the first point to be
observed is that according to
English law the provocation
suffered must be provocation on
the part of the deceased before
a crime can on that account be
reduced from murder to
manslaughter
(Rex v. Simpson,
11 Cr. App. Rep. 218). We think
that the same principle holds
good in considering the wording
of section 318 of the Nigerian
Criminal Code, i.e. it is
implicit in the word"
provocation" that it must be
given by the deceased.
A second point to be noted is
that in English law the degree
of provocation is one of the
deciding factors, and it is to
be judged by the effect it would
be expected to have on a
reasonable man and not by the
effect it did actually have on
the particular person charged
(Reg. v. Welsh,
11 Cox's Criminal Cases 336,
R. v. Alexander,
9 Criminal Appeal Reports 139,
R. v. Losbini,
11 Criminal Appeal Reports 7).
Moreover, the mode of
resentment, as instanced by the
weapon used, must bear a
reasonable proportion to the
provocation
(R. v. Stedman,
Fost 292).
I t was submitted to us on
behalf of the appellant that
none of these considerations are
material in interpreting the
words of section 318 of the
Criminal Code" in the heat of
passion caused by sudden
provocation," but that all that
is necessary, under that
wording, to reduce the crime to
manslaughter is
(a)
that the provocation, no matter
how slight, should be sudden,
and
(b)
that, in fact, it produced in
the killer a " heat of passion."
We cannot subscribe to this
proposition, and we think that
the broad and well-established
principles of English law must
be applied in considering
whether a crime is murder or
should be reduced to
manslaughter on account of
provocation. Applying these
principles, Counsel made a
strong point on appellant's
behalf in drawing our attention
to the case of
R. v. Bourne
(5 C. & P. 120, 172 English
Reports, p. 903). In that case
Parke, J., in summing up to the
jury said,
It
The prosecutor states that he
was merely restraining the
prisoner from beating his
brother, which was quite proper
on his part; and says, that he
did not strike any blow. If you
are of opinion that the
prosecutor did nothing more than
was necessary to prevent the
prisoner from beating his
brother, the crime of the
prisoner, if death had ensued,
would not have been reduced to
manslaughter; but if you think
that the prosecutor did more
than was necessary to prevent
the prisoner from beating his
brother, or that he struck any
blows, then I think that it
would. You will, therefore,
consider whether anything was
done by the prosecutor more than
was necessary, or whether he
gave any blows before he was
cut." Counsel emphasises
the use of the word" or" and
asks us to say that this
establishes the proposition that
in all cases where any blow
is struck-no matter how
slight-the crime becomes
manslaughter. and consequently
that in the present case, taking
the prosecution evidence that
deceased struck appellant with a
switch, the reduction must be
made. But on examination of
other cases it is quite clear
that this proposition is not
good law.
In the case, for instance, of
Reg. v. Sherwood
(1 C. & K. 556 ; 174 English
Reports, 936), Pollock, C.B ..
said to the jury:
" It is true that no provocation
by words only will reduce the
crime of murder to that of
manslaughter, but it is equally
true that every provocation by
blows will not have this effect,
particularly when, as in this
case, the prisoner appears to
have resented the blow by using
a weapon calculated to cause
death,"
And again in
R. v. Lynch
(5 C. & P. 324; 172 English
Reports 995), Lord Tenterden in
summing up said, " It is not
every slight provocation, even
by a blow, which will, where the
party receiving it strikes with
a deadly weapon, reduce the
crime from murder to
manslaughter. "
The general principle is laid
down in the case of
Rex v. George Hayward
(6 C. & P. 157; 172 English
Reports 1188), in which Tindal,
C.J., told the jury that" if
they were satisfied that the
death of the deceased had been
occasioned by the prisoner
having stabbed him with a knife,
or some other sharp instrument,
of which there could be little
doubt, the remaining and
principal question for their
consideration would be, whether
the mortal wound was given by
the prisoner while smarting
under a provocation so recent
and so strong that the prisoner
might not be considered at the
moment the master of his own
understanding; in which case,
the law, in compassion to human
infirmity, would hold the
offence to amount to
manslaughter only." This rule
was accepted by the Court of
Criminal Appeal in the case of
Rex v. William Richa.rd Hall
(21 Cr. Appl. Rep. 48) in which
the Lord Chief Justice said, "
So here, it seems to us that it
was for the jury to consider ...
whether it was true to say in
this case that the prisoner,
when he committed the act with
which he was charged. was
smarting under a provocation so
recent and so strong that he was
not, at the critical moment, the
master of his own
understanding,"
The point then to consider in
this present case is whether the
appellant could be said to have
been smarting under a
provocation so recent or so
strong as to justify the
reduction of the crime to
manslaughter.
Now there is no doubt that the
appellant was at the time in a
great rage, but this was
occasioned primarily by his
fight with Adiele and
secondarily by the fact that the
fight was stopped; his real
annoyance with deceased was for
stopping the fight and not for
Anyanwu striking him with a
switch. The question then arises
was the deceased justified in
his action and this must clearly
be answered in the of
affirmative. The deceased was
the head of the compound and as
such responsible for keeping law
and order in it. The appellant
and Adiele , were engaged in an
unlawful act, which might lead
to serious consequences, the
deceased was perfectly justified
in using lawful and reasonable
means to stop the fight, and the
means he used cannot be held to
be unlawful or unreasonable. An
action against him for assault,
for instal1ce, would be bound to
fail. This being so it must be
apparent that even if it could
properly be said that there was
any provocation at all given by
deceased, it was of a very
slight degree, and was not so "
strong" as to reduce the offence
to manslaughter.
Since that is our view the
further question as to whether
there was time for passion to
cool does not arise. That would
have to be considered only if we
were of opinion that the
provocation was so strong that
the offence would be
manslaughter only, unless there
had been time for passion to
cool
For the reasons given we are of
opinion that the learned trial
Judge was right in convicting
the appellant of murder and in
not reducing the offence to
manslaughter.