Appeal Court, 27th Feb., 1939. Appeal from conviction in ,High Court.

Murder contra sec. 319 of the Criminal Code-Defence of Intoxication.

Held: The learned Trial Judge came to a correct decision and appeal dismissed.

E. G. Unsworth for Crown.

Appellant in person.

The following joint judgment was delivered :-

KINGDON, C.]., NIGERIA, BUTLER LLOYD AND CAREY, J].

The only question raised on this appeal is whether the Court came to a right decision with regard to the law as to intoxication as a defence in this country.

It is sufficient to say that in our opinion the learned Trial Judge, set out the law on that point both fully and correctly.

The appeal is dismissed.

The facts of this case are to be found in the following judgment of the learned Trial Judge:-

The accused, a native of the Gold Coast, is charged with the murder of a fellow clerk who like himself was employed at a mining camp in the Sokoto Province on October 30th last by shooting him with a shot gun. The evidence shows that the accused and the deceased were called to the Manager's office on a Sunday afternoon to draft and type a reply to a letter from a neighbouring manager, to which an inadequate reply had already been dispatched in the absence of the Manager in the morning; an altercation then arose and the accused struck the deceased over the face with a . piece of paper Exhibit" D " on which was his draft which he had attempted to re-draft. Odonkor a younger and stronger man whom the accused describes as his nephew then rose and pushed him and accused fell over backwards; In rising accused picked up a heavy hammer and attempted to strike deceased with it but was prevented from doing so: the Manager then separated them and accused departed saying" I will go home and rest ".

Shortly afterwards, Owarey returned with a shot gun loaded in both barrels and three spare cartridges in his pocket, aimed the gun at the Manager, then went in search of someone, clearly the deceased, found him in the office and shot him at a distance of a few yards in the stomach. He had remarked " Where is he ? •• and " Someone ,,;ill die to-day". The witnesses describe his previous conduct as normal but after being apprehended he was abnormal, was shouting and exclaimed" Whatever I have done is nothing" and" What have I done?". The deceased was some two hours later placed on a bed at 6 p.m. to be carried by porters to Gusau hospital some 50 miles away. It might have been thought that as there were no local means of treatment such a step was the only hope of saving his life which indeed was small in view of the nature of the wound. The evidence shows that 2i hours after setting out the deceased was found to be dead; his body was carried to Gusau hospital identified to the Medical Officer who did a post mortem and has told the Court that death was due to hremorrhage resulting from laceration of the liver and spleen caused by gun shot wounds.

There is indeed no dispute as to these facts except as to the state the  accused was in at the time the act was committed. The defence is (a) temporary insanity induced by excessive drinking and (b), at! I understand Owarey it, provocation which in relation to the intoxicated state the accused was in would reduce the crime from murder to manslaughter. The accused went into the witness box and gave an account of heavy drinking since early morning, a faint recollection of drafting the letter Exhibit" D " but no memory of discharging the shot gun: he says that it was dark when he first came to.

I will deal with the aspects of the second defence later, but to prevent any confusion of thought in the nature of these two defences it should be stated now that intoxication is not a good defence under Section 29 of the Criminal Code unless by reason thereof the person charged did not know that-such act was wrong or did not know what he was doing and the person charged was by reason of intoxication insane, temporarily or otherwise at the time. It is then and then only that the plea of intoxication is the equivalent of that of insanity and such a plea must be definitely established.

In this case it has not even been started to establish it by the evidence: one question was addressed to the medical witness as to whether excessive drinking could produce temporary insanity. The burden of establishing a defence rests on the prisoner where the defence is one of insanity and not even the first step has in this case been taken towards establishing it.

Under Section 29 (2) intoxication shall only be a defence to a criminal charge if by reason thereof the person charged did not know that such act was wrong or did not know what he was doing and was by reason of intoxication insane temporarily or otherwise at the time.

It would be well at this stage to make a distinction in that there is an essential difference between a defence founded on insanity and one founded on intoxication and it has been laid down that in a direction to a jury care must be taken to distinguish between tests in each case respectively and in the latter there should be no warning that there is no plea of insanity and except on that plea the question whether defendant knew that he was doing wrong is irrelevant. We pass thus to Section 29 (4) of the Criminal Code which says that intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise in the absence of which he would not be guilty of the offence. Evidence going to show that the defendant was so intoxicated as to be unable to form such an intent is taken into consideration: evidence falling short of such incapacity though it may establish more ready tendency to some violent passion, than if the defendant were sober, does not rebut the presumption of the existence of intent to produce the natural consequences of his acts.

Counsel for the Crown in his learned argument on the subject directed the attention of the Court to Director of Public Prosecutions. versus Beard 1920 App. Cases 479 not as presenting similar facts for in that case a crime of violence was interposed which was the cause of the death but as setting forth in the comprehensive judgment of Lord Birkenhead L. C. the principle on which the defence of drunkenness must be approached. The conclusions to be drawn from the cases were there summed up under three heads at page 500.

I. Insanity whether produced by drunkenness or otherwise is a defence to the crime charged. The distinction between the defence of insanity in the true sense caused by excessive drinking and the defence of drunkenness which produces a condition such that the drunken man's mind becomes incapable of forming a specific intention has been preserved throughout the cases.

II. Evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not be had this intent.

III. Evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion does not rebut the presumption that a wan intends the natural consequences of his acts.

That is the law also in this country and it must now be applied to the facts in this case. One thing may very definitely be said that an impression was gained throughout that the accused had been drinking but that the witnesses were anxious to suppress it. Though there was an unanimity amongst the witnesses for the Crown that he was perfectly normal one felt a suspicion that something may have been concealed under that unanimous refusal to say anything more. The witness Hadiza wife of the deceased protested overmuch, and Musa completely contradicted the evidence given by him at the Preliminary Investigation (Exhibit" G "). The degree of intoxication must therefore be sought in the actual facts. There is the accused's handwriting and the draft of the letter Exhibit" D ". The prosecution sought to put in a document in cross-examination of the accused to show the standard of typing done at the time by the deceased who had been the accused's drinking companion as an indication but the evidence was held inadmissible as being irrelevant: accused was asked if he had seen it and on his answering no, the Court was asked to re-call the first witness to put it in but refused to allow this as it could not be said to be properly evidence in rebuttal or maintained that there was any surprise whatever. The existence 01 both documents was known and the only surprise was that the accused could not recognise the typing as that done of deceased at the time of the quarrel. Further, it was clear that the defence would be intoxication. Exhibit" D " shows the confused mentality and handwriting of a man who had drink taken but nothing more. He was able to attempt a re-draft. There is also. accused's remark" I will go home and rest ", his absence for a brief space of a few minutes, his return with a gun loaded in both barrels, with three spare cartridges in his pocket, his remark" Someone will die to-day ", his aiming of the gun at the Manager which might appear evidence of universal malice but was immediately followed by a search for the deceased Odonkor, his deliberate aim at the latter at a close range and firing of the gun at a vital spot.

There is nothing in this evidence which can even suggest that the accused was so drunk that he was incapable of forming the intent required. Counsel for the Crown referred to R. v. Meakin 7 C. & P.,297 as a case in point.

There the jury was directed that in the case of stabbing with intent to murder, where the prisoner had used a deadly weapon, the fact that he was drunk could not alter the nature of the case . If ", the direction continued, .. a man uses a stick, you would not infer, a malicio11s intent so strongly against him, if drunk, when he made an intemperate use of it, as you would if he had used a different kind of weapon; but where a dangerous instrument is used, which, if used, must produce grievous bodily harm, drunkenness can have no effect in the consideration of the malicious intent of the party." The view was that drunkenness might affect the jury's view of the intent but that the use of the deadly weapon in that case showed the malicious intent so clearly that the drunkenness of the accused could not alter it.

One has next to consider the question of provocation; in cases falling short of insanity a condition of drunkenness at the time of committing the offence causing death can only, when available at all, have the effect of reducing the crime from murder to manslaughter. Where there is evidence of provocation the drunkenness of the accused can be taken into account in considering what effect the provocation had on his mind. Where there is legal provocation the consequences may be different in the case of a drunken man because the injury must be whether the man has lost his control by reason of the provocation and a drunken man would be more likely to lose his control than a sober one. There is in this case only the statement of the first witness as to quarrels between accused and deceased, but there is nothing to show that the accused was subjected to any such immediate provocation as would reduce the crime to manslaughter: he slapped the deceased with the letter, he then after being pushed by deceased and failing to the ground and continuing the struggle with a hammer and being separated by the Manager stated he would go home to rest, returns in a very short space of time with a gun, seeks out the deceased and kills him. 

I will only refer to a recent case in which the facts were not dissimilar but were stronger than those in the case before the Court. In R. v. Ridgway (1937) the learned Judge in his summing up said that in some cases it was open to a jury to return a verdict, of of murder; but of manslaughter, but that no alternative verdict arose in this case. The charge that had been made against the accused was that on that day he had, after being twice assaulted by the dead man and with his mind· inflamed with drink and resentment at the treatment. he had received, gone to the cook's galley and there took a knife, and having armed himself went down to the room where the deceased was and inflicted one or both of the wounds which deceased had received. If that case was made out to the satisfaction of the jury, His Lordship directed that no matter whether the accused was under the influence of .drink or whether he was turning with resentment at the treatment he received, the crime would be that of murder.