Appeal Court, 24th Dec., 1941.  Appeal from conviction by Divisional Court.

Murder-.Abetment--.:.Section 47 (1) of Criminal Code.

[Three soldiers in company killed a man. Two accused' were found guilty but the third soldier was not before the Court and his identity was unknown. There was inconclusive evidence of the respective role of each soldier. There was evidence of stabbing by one man and abetment be another. There was no evidence to show third. man instigated, abetted, assaulted or assented to the use of a knife. or had any idea that a knife would be used. There was strong evidence that one of the accused either did the murder or abetted therein. The trial Judge directed the Jury to say whether they believed the prosecution witness and if they did, and they were satisfied that the fight witnessed was the one when deceased was killed then both accused were guilty of murder.]

Held: (i) That there was no evidence that third man had abetted the murder as' it appeared that' the crime actually committed was not a probable consequence of the endeavor to commit nor substantially the same as the crime which the abettor intended to abet, and the only offence under section 47 (1) of the Criminal Code which could be held against the third man was assault;

(ii) As it is impossible to say which of three roles was filled by second accused he is entitled to the benefit of the doubt;

(iii) In view of the strong evidence against first accused with a proper direction to the jury tt is possible he would (have been convicted of at least abetting but as it is not possible to say that that would inevitably have been the conclusion of the jury he is also entitled to the benefit of the doubt.

Appeal allowed; conviction and sentence of each accused quashed and a judgment and verdict of acquittal entered.

W. B. Van Lare for Appellants.

W. H. Irwin for Crown.

The following joint judgment was delivered:-

KINGDON:, C.J., NIGE'RIA, PETRIDES, C.J.) GOLD COAST AND BANNERMAN, J.

In this case the appellants were convicted at the Criminal Assizes held at Winneba by Fuad, J., sitting with a jury of the murder of one Tetteh Owaraka. The facts of the case are that the two appellants were soldiers stationed at Winneba Camp. On Sunday the 26th October, 1941, shortly after 7 p.m. they were in the Town of Winneba and had been drinking. They were with a third soldier. One of the three accosted two men who were passing and angry words ensued, whereupon the three soldiers ran towards the two men who ran away, but the soldiers caught one of them namely the man Tetteh Owaraka, a fisherman, and proceeded to beat him. A woman named Araba Ntesi ,was near by and saw and heard this happen. Then in her own words Then I heard a voice say 'stab him with a knife.' I heard " another voice say , You say you are not a fool-am I the fool-

 I'll kill you now.'    Then I heard an exclamation of someone in agony-it said ' egya '-and it added ' I beg your " 'pardon.' At that moment I saw a man in European clothes " going towards that group of people-I then heard a voice-a " person raise his hand saying , whoever' comes near me, be he a " 'man or a woman, I will kill him.' The man in European " clothes then ran a way and I also ran a way." pg 213

The man Tetteh Owaraka was found stabbed with a knife and he shortly afterwards died from the wound. There were other circumstances to connect the two appellants with the crime and from the verdict of the Jury it must be taken as proved that the two appellants were two of the three soldiers who committed the assault upon Tetteh Owaraka that resulted in his death. The third soldier was not before the Assize Court and so far as appears from the proceedings his identity remains unknown.

It is also unknown which of the three soldiers actually stabbed Tetteh Owaraka, which of them said "stab him with a knife" and which of them said " I'll kill you now. The learned trial Judge summed up very fully to the jury and has recorded short notes of his directions to them. Two of the passages in these notes are as follows:-

" I told them that when considering as to whether or not " both were guilty of the stabbing, they should bear in mind " the provisions of sections 46 and 47 which I had very care­" fully explained to them. In this connection, I reminded " them of the evidence of Araba Ntesi who said that she heard " one voice say' stab him with a knife.' and the other voice " say , I will kill you now.' "

" I again reminded them of the evidence of Araba Ntesi.

"I told them that it was for them to say whether they " believe(] her story or not, but if they believed it and were " satisfied(] that the fight which she witnessed was the one in " which the deceased received his stab-wound, then the killing " was murder in both."

We are of opinion that these directions amount to misdirection both on  the facts and in law because in giving them the learned .Judge appears to have lost sight of, or at any rate to have Completely ignored, the very important facts that there was a thin] soldier who took part in the assault, and that it is quite impossible to say which of the three men filled the respective roles. These roles may be specified as (1) the mall who inflicted the fatal wound: he is the actual murderer of Tetteh Owaraka. He is also probably~' the man who said" I'll kill you now." (2) the man who said "stab him with a knife." He also could pg 214 properly be convicted of murder as an abettor. (3) the third man who took part in the initial assault and must have been present when the actual stabbing took place, but against whom there is nothing to show that he instigated, abetted or assaulted or assented to the use of a knife or had any idea that a knife would be used when he joined in the assault. The degree of guilt (if any beyond that of assault) attaching to him must be considered and decided. The question appears to be governed by section 47 (1) of the Criminal Code (Cap. 9) which reads as follows;-

" Where a person abets a particular crime, or abets a " crime against or in respect of a particular person or thing, " and the person abetted actually commits a different crime, " or commits the crime against or in respect of a different " person or thing, or in a manner different from that which " was intended by the abettor, the following provisions shall " have effect, that is to say:-

" (a) If it appears that the crime actually committed was not "a probable consequence of the endeavour to commit, " nor was substantially the same as the crime which the " abettor intended to 'abet, nor was within the scope of " the abetment, the abettor shall be punishable for his " abetment of the crime which he intended to abet in the " manner provided by this Title with respect to the abetment of crimes which are not actually committed; and

" (b) In any other case, the abettor shall be deemed to have " abetted the crime which was actually committed, and " shall be liable to punishment accordingly."

It is clear from these provisions that the third man cannot be held to have abetted the murder, and that the only offence which he has committed is the actual assault, which the learned Acting Solicitor-General tells us would, in the ordinary way, have led to a prosecution under section 84 of the Criminal Code in which the penalty provided is a fine of £10 or imprisonment for two months. No question of a conviction for manslaughter arises.

We have then the position that of the three men, if all hail been arraigned, two could properly have been convicted of murder, whilst the third would have been entitled to an acquittal.

It is impossible to say in respect of the second appellant which of the three roles he fills. He may be one of the two guilty of murder or he may be the third who should be acquitted, He is entitled to the benefit of the doubt, and should, upon a proper direction, have been acquitted.

In regard to the first appellant, there is more evidence of his participation in the crime, namely his own statement to the police which was not evidence against the second appellant. In that statement the first appellant says-

" Getting to the junction of Cornwall, .Alexandra and "Victoria Streets, near the Power House, I met two. civilians running. They were wearing cover cloths. I " heard these civilians saying in ]<'anti language as follows:­" , Yen are yeyee', which means in English language, " , We did it ' ". I got hold of one of them and the other " also stopped. I did not know these men before and I do " not know their names too, They were young men. I saw " the first ac(~u6ed standing about forty-three feet away from "us. Immediately I stopped these men K wesi Adu ran to "the spot where we were standing. K wesi Adu without " asking anything began to assault the man I had caught and " the other man also ran away. I was still holding this very " man fast whilst Kwesi Adu was assaulting him. This man " began to cry out as follows ' W okum me 0, W okum me 0,' " which means in English language ' they are killing me 0, " 'they are killing me 0,' but still Kwesi Adu continued " Hogging him until he had a narrow escape from us and he "went away. As he was running he left his cover cloth " behind and I picked it up. I remember that immediately " I held this man and Kwasi Adu was running towards us, " Kwesi Adu said that she or he who will dare coming here- we " will stab him or her to-day with a knife. I saw Corporal " Tonka Frafra and one other soldier who also ran to the "spot, but before they arrived at the spot then these men " had gone away already. Corporal Tonka Frafra asked me " to give the cover cloth to him but I refused to give it to " him because he was not present when the incident occurred. " Kwesi Adu also asked me to give it to him and I refused "also. As the matter of fact I did not see Kwesi Adu in " possession of any knife at the time and I did not actually " see him stab the man with any knife."

It should be noted that the " first accused " therein mentioned is now the second appellant. It is possible that on. a proper direction the jury might have come to the conclusion that in view of this statement and the other evidence, the first appellant must either have been the man who stabbed the deceased or at any rate must have held the deceased whilst one of the other two stabbed him and so be guilty of murder, but we are quite unable to say that that would inevitably have been the conclusion of the jury. This appellant also is entitled to the benefit of the doubt as to which role he filled and we feel compelled to direct an acquittal in his case also.

The appeal of each of the appellants is accordingly allowed, the conviction of each and the sentence passed upon each are quashed, and it is directed that, in the case of each, a judgment and verdict of acquittal be entered. The appellants are. discharged .. pg 215