pg 210   Appeal Court, 17th Dec., 1941.

Murder Charge-Accused under charge of rape ran away-Police Constable proceeded to arrest without warrant-Member.of public called upon to help-One of them killed by accused in resisting capture-:-Deceased did not attack accused ,or use unnecessary force-Guilty.

Held: Appeal dismi8Bed.

There is no need to set out the facts. E. A. Bannerman for Appellant.

W. H. Irwin for Crown.

The following joint judgment was delivered:-

KINGDON,C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND BANNERMAN, J.

In this case the appellant had been taken before the Biahene and charged with rape. He had run away. The Biahene, who though not a Native Authority within the meaning of the Native Authority (Ashanti) Ordinance (Cap. 79), is a chief and he rightly reported the matter to the p9lice, Police Constable Joffa went to arrest the appellant without a warrant, as he was entitled to do. He called upon some members of the public to help him, A man named Kwame Bandahene was one. Whilst attempting to make the arrest. Kwame Bandahene was killed by the appellant with a cutlass. There is a conflict of evidence as to whether or not Kwame Bandahene attacked the appellant before being killed, and as to whether or not Kwame Bandahene was armed.

The appellant was tried for the murder of Kwame Bandahene by Doorly, J " sitting with assessors at a special Assize held at Wenchi. After hearing the evidence, the learned trial Judge concluded his summing-up to the assessors with the following concise and- correct directions:-

" If you believe that deceased attacked accused with a " cutlass and that accused being in ·danger of his life did " no more than was necessary to defend himself, you will give •• the opinion that accused should be acquitted. pg  211

" If you believe that deceased attacked accused and cut " him and that accused then struck the deceased, but went " further than was necessary in self-defence, you will give " the opinion that accused is guilty of manslaughter. On this " question you will consider whether deceased after receiving " anyone of the blows testified to by the doctor would have " been in a position to continue an attack on accused.

" If you do not believe the deceased attacked accused "an~ are satisfied that deceased did nothing he was not "entitled to do, you will express the opinion that the accused " is guilty of Murder."

Upon these directions the assessors were unanimously of opinion that the appellant was guilty. of· Murder ..

The learned trial Judge then recorded the following judgment: -    .

" I find as facts that the deceased did not attack and cut " the accused with a cutlass or use any unnecessary force in " assisting the police to arrest the accused as was his duty. " I am satisfied that accused knew the purpose of the visit " of the policeman and his assistants and attacked in order " to resist capture. I find the accused guilty of Murder."

We see no reason to differ from these findings of fact, and upon them the correct finding is clearly" Guilty of Murder."

The appeal is therefore dismissed.