Cases & principles on Homicides: Murder & Manslaughter

 

 Homicide, murder and manslaughter in criminal law

OFFENCES AGAINST THE PERSON

HOMICIDES

Homicide is the killing of human being by a human being. These can be divided into two categories:

Lawful killings

ü  Killing an enemy in execution of war.

ü  Killing in execution of lawful judgment.

ü  Killing in self-defense.

ü  Killing in the course of arresting or preventing a crime.

ü  Accidental killing.

Unlawful killing

ü  Murder

ü  Manslaughter.

ü  Suicide.

ü  Child destruction.

Who can kill?

A man of sound memory and of age of discretion i.e. a man who is responsible according to the general principles of criminal responsibility.

Who is a victim of homicide?

One must be a living person. Section 204 of the Penal Code explains when a child is deemed to be a person capable of being killed.

When does the life end?

A person is termed dead when the brain stop working.

Causation in Homicide

Causation in homicide is provided under section 203 of the Penal Code. This section deals with complicated cases of homicide. According to this section, a person can be held to have caused the death of another person even if his act is not the immediate or sole cause of death. The following are the instances of causation.

Section 203(a) TPC

A person inflicts bodily injury to another person and that person dies after treatment.

In the case of R.V.STEPHANO ALOIS (1972) H.C.D No. 199, the accused was convicted of murder. The accused fatally stabbed the deceased during circumcision ceremony. An argument developed as to why he drew a dagger and the accused stabbed the deceased. He died of shock and hemorrhage on the ninth day. The court said:

 “…The fact that the life of the deceased might have been saved if he had received good medical attention cannot affect the legal responsibility of the accused for the death of the deceased, That the deceased’s life could have been saved if received good medical care  cannot  be of a defense in law or snap the claim of causation…”

In another case of R. V. NJARURA NDUGO 11 E.A.C.A. 59, the deceased received from thieves a wound which was itself dangerous. He died under anesthetic administered for the purpose of stitching the wound. All the usual precautions were taken before the anesthetic was administered. The doctor admitted in evidence that if the deceased had not been given anesthetic, he would not have died, and that it was quite possible that he would have survived had not been operated. The court found that:

“…The trial court was justified in presuming that a qualified practitioner would not perform an operation unless it was in his opinion necessary and advisable. The thieves were liable…”

In MWITA NYAMHANGA V. R. [1992] T.L.R 118, the appellant, using a panga, inflicted a cut wound on a person who later died because of tetanus. He was convicted of murder by the High Court. On appeal he challenged the conviction arguing that there was no evidence to connect the cut wound and tetanus which ultimately caused the death of the deceased. The wound was inflicted on 14/4/86 and the deceased died on 25/4/86 i.e. eleven days later. Advocate for the appellant argued, whether the wound inflicted by the appellant brought about tetanus or that wound hastened death? The post-mortem report showed that the cause of death was ‘respiratory failure caused by tetanus’. Advocate that

the report didn’t give the cause off tetanus and the doctor who performed the post-mortem was not called to testify. The advocate referred the court two medical treaties which say that the incubation period for tetanus is a minimum of eight days, but the treaties don’t say what is the minimum incubation period nor do they indicate after how many days from the time of injury or when symptoms have appeared is death likely to result. The court said:

“…We cannot say beyond reasonable doubt that the wound by the appellant   caused tetanus. There is evidence that the deceased had fever before the attack by the appellant…”

Section 203(b) of the Penal Code.

In the case of R. V. HOLLAND (1948) 2 Mood & R 351, the accused waylaid and assaulted the deceased. Among other wounds, the deceased was severely cut cross his fingers by an iron instrument. His surgeon urged him to submit to amputation, but the deceased refused to allow this. The deceased attended the infirmary from day to day to have his wound dressed. After a fortnight however, lockjaw came on, induced by the wound on the finger. The finger was then amputated but it was too late to save the deceased’s life. The surgeon deposed that if the finger had been amputated in the first instance, the deceased would probably have survived. The court said that:

“…The accused was found guilty and was responsible for the death, but the sentence was apparently, later respited…”

In R. V. MUBILA 1955 (1) S.A 31, accused stabbed the deceased. Two days later after the stabbing deceased was admitted to hospital. It showed that the wound had stopped bleeding and there was no evidence of internal breeding. The deceased was warned to remain immobile. Nevertheless the deceased got up and moved about, the movement probably started the hemorrhage, and the hemorrhage caused his death. It can’t be said with any certainty that the hemorrhage would not have restarted even if the deceased had not moved, the chances of recovery in an event were less than even.

“…There is no obligation in a person who is wounded to obtain any medical assistance at all. And hence no obligation to follow the instruction of the doctor if he does seek assistance. Hence the failure to take doctor’s advice can’t be an intervening cause as to relieve the accused of liability…”

Section 203(c)

A person dies as the result of avoiding violence threatened by the accused.

In the case of R. V. PITTS (1842) Car & M. 284, the deceased threw himself into a river to avoid acts of intentional violence against himself by the accused. The deceased drowned.

“…Accused guilty of murder. ‘A person is responsible for homicide if by actual or threatened violence  he causes that other person to perform an act which causes the death of that person such act being a means of avoiding such violence which in circumstances would appear natural to the person whose death is so caused…”

In R. V. AGUMAGU MWAOKO 5 W.A.C.A 120, the accused demanded the return of one pound he had paid as “head money” for his wife when she refused to continue living with him. She didn’t repay it. Accused brought a juju, pointed it at her, and said that since you refuse to pay me my money this juju will kill you”. She become depressed and six days later after the bringing of the juju she hung herself. On appeal the court held that:

“…The court reversed the conviction for manslaughter on the ground that the act of the deceased was not immediate consequence of the accused’s invocation of juju, the act of woman hanging herself was held to be an independent intervening cause…”

Thus we see that under section 203(c) of the Penal Code if one under a well-grounded apprehension of personal violence does an act, which causes his death, as for instance, jumps out of a window or into a river he who threatened is answerable for the consequences.

The proper test is not whether the accused foresaw the conduct of the victim, which resulted in actual bodily harm, but whether the conduct could have been reasonably foreseen as the consequences of what the accused was saying or doing. It seems immaterial whether the fear arises from violence or threat.

Section 203(d) TPC

Persons already sick, accused hastens death of sick person or dying persons.

In R. V. ENYAJU EGURUTO 12 E.A.C.A 42, during tribal dance, T willfully gave the deceased a violent poke on the head with the sharper end of his heavy dancing stick, piercing skill and causing the deceased’s brain to prerude. The deceased fell to the ground and almost immediately E beat him violently on the other side of the fractured skull. The court found that:

“…Both T and E were rightly convicted of the accused’s murder. Successive but separate beatings causing death, it was no defense to E to say that the injuries that he inflicted upon the deceased would not have cased death but the prior assault…”

In another case of R. V. OKUTE KALEBI 8 E.A.C.A. 78, the deceased was first beaten up by four men and made to dig up some stolen meat. Sometimes later, as the deceased in a very weak condition was being taken to the chief he was assaulted by another. The deceased died from shock resulting from cumulative effect of his injuries.

“…The four men could not be held responsible for causing deceased’s death, as on the evidence it was possible that the injuries inflicted by them might not have caused death but for subsequent assault by X and there  was  no evidence of any common intention between them and X. But X was guilty of murder, for he had with intent to cause grievous harm, assaulted on who was already in a very weak state…”

Section 203(e) TPC

In R. V. KATUNZI 13 E.A.C.A, the appellant set fire to a hut made of millet stalks and with only one door, with the intention of causing death or grievous harm to the occupants. Z, K and four helpless children were in the hut at the time Z with K’S help evacuated the children. Then Z under mistaken belief that one of the children was still in the hut re-entered it and sustained burns from which he died next day.

“…The applicant was responsible for Z’s death and guilty of murder…’

In the case of R. V. MPULUTA 5 N.R.L.R. 377 (1954), the accused while driving a lorry on a wide, dry-surfaced road endeavored to overtake a lorry in front. In doing so he collided with another lorry. After the collision, the accused’s lorry swerved all over the road. Two passengers in the back of the accused’s lorry thought it safer to jump out than stay in it. One jumped clear but the other fell back under the accused’s lorry and was killed. In the event the lorry didn’t turn over.

“…The accused caused the deceased’s death because the deceased has done the natural thing in the circumstances. The accused was not guilty of manslaughter, as the evidence didn’t go so far as to show that the accused foresaw or ought to have foreseen that his driving would likely to result in the death of the deceased. The accused was convicted of reckless driving…”

             

The Problem of Causation/Coincidence of Actus Reus and Mens Rea

In this situation you may find that actus reus, which caused the act, may not be accomplished by mens rea. Thus where there is an intention to kill or cause grievous harm that intention may be presumed to continue throughout the course of the actus reus.

In the case of R. V. OJAMBO NAMBIO (1944) 11 E.A.C.A. 97, the deceased was caught stealing sugar cane in the appellant’s shamba and tied up. The appellant then beat the deceased so severely that on being untied he fell down and seemed to be dead. The appellant believing him dead removed this body to a swamp.

“…The act of depositing the deceased in the swamp was the direct consequence of and consequence to the beating and that these acts were so closely connected as to constitute a continuing series of acts and one transaction the cumulative effect of which was the death of the deceased. Such beating as was inflicted infers an intention to cause at least grievous harm and establish malice aforethought making the killing murder…”

In another case of THABO MELI V. R [1954] 1 W. L. R. 228, the appellants in execution of a pre-conceived plan to kill the deceased took him to a hut where he was struck over the head with an instrument. Believing to be dead they took him out and rolled him over a low cliff and dressed the scene to make it look like an accident.

“…It was impossible to divide what was really one transaction. They set out to do all those acts as part of and to achieve their plan and it was too much refined a ground to judgment to say that because they mere misapprehension at one stage and thought that their guilty purpose had been achieved before it in fact was therefore they were guilty of murder…”

MURDER

Section 196 of the Penal Code defines the term murder. Ingredients of murder are:

ü  Causing death of another.

ü  With malice aforethought.

ü  By an unlawful act or omission. 

In murder actus reus is found in causation-S. 203 and intention/mens rea is found in malice aforethought. Malice aforethought can be proved either by express or implied malice. Malice aforethought is proved under section 200 of the Penal Code.

Section 200(a) TPC

A person is said to have malice aforethought if he intended to cause death or to do grievous harm to any person. Once intention is proved, it doesn’t matter whether the person intended to be killed is the one actually killed or not. But if intention is not proved then the person cannot be convicted for murder.

In the case of HERMAN NYINGO V. R [1995] T.L.R 178, the appellant was convicted of murder by the High Court. In an unprovoked manner, using a heavy stick, he had hit the deceased hard on the head. Subsequently the deceased died. The appellant was heard saying “I am killing you because of your sorcery”. On appeal the appellant complained that the trial court should have accepted his defence of provocation and self-defence and found him guilty of the lesser offence of manslaughter.

Ø  Normally the defence of provocation is available in circumstances which would otherwise constitute murder except for the sudden loss of control of oneself as a result of some act which provokes the accused person.

Ø  There was no provocation at all involved in this case.

Ø  In the absence of a fight between the appellant and the deceased and that it was the appellant who started attacking the deceased with a heavy stick forcefully; the defence of self defence was not available either.

Ø  The appellant's utterance that he was killing the deceased because of his sorcery is a clear manifestation of malice aforethought.

In   MOSES MICHAEL@ TALL V. [1994] TLR T.L.R 195,the appellant killed a woman he was cohabiting with and was convicted of murder. On appeal he argued that he ought not to have been convicted of murder because malice aforethought was established. The issue was whether malice afore thought may be inferred from the amount of force used and whether conduct may be indicative of malice.

Ø  Malice afore thought may be inferred from the amount of force, which the offender employs in inflicting fatal injury.

Ø  The conduct of the accused may be indicative of malice aforethought as it was in this case where the appellant was persistent in beating the deceased for a longtime and prevented intervention by persons who wanted to help the deceased.

In WILSON NYAMHANGA V. R [1984] TLR 340, the appellant, a prisoner, killed an inmate at Isanga Prison.  The deceased was fighting with a fellow prisoner. A commotion ensued. During such commotion the appellant stabbed the deceased and uttered words to the effect that the deceased had to die on that day.  The trial court found that all the ingredients   of the offence of murder, including malice aforethought, were established and convicted the appellant of murder.  On appeal it was argued whether given the fight and the commotion malice aforethought could be said to have been established.

“…The stabbing by the appellant took place in the heat of passion generated by the fight and commotion; although at one point of the fight and commotion the appellant told the deceased "Lazima ufe leo", that is, "you must die today", that statement by itself is not evidence of premeditated killing, since    the statement was made in the course of, and during, the fight and commotion and not before…”

In R. V. MOHAMEDI NITE 1974 L.R.T. N. 36, the accused murdered the deceased. The incident took place on the night when the deceased’s wife and the accused were returning home from pombe party. When they were nearing accused’s home the accused went for a short call and that he was returning back, the wife heard the accused raising an alarm. She saw the accused fighting with her husband and that the accused felled him on the ground and stabbed him many times.

i) Malice aforethought is rarely proved by direct evidence if it can often inferred to the circumstances viewed as a whole. The nature of the weapon used and the manner in which the blow is inflicted are factors to be considered.

ii)  By using a lethal weapon the accused may be presumed to have formed either an intention to kill or cause grievous harm.

iii) Where death ensures from a fight the person who causes death is normally guilty of manslaughter.

iv)  The benefit of doubt will be resorted in favour of the accused.

In SOLOMON ULAYA V. R (1972) H.C.D. No. 233, the accused intended to kick his wife but kicked his mother instead and she died.

“…Had no intention to cause grievous. The weapon and manner used was not indeed to cause grievous harm, the fatal consequences could not be foreseen---Manslaughter…”

Section 200(b) TPC

Under this part the person had knowledge of the occurrence of death, but does not wish/want or intend death to occur, he is indifferent whether death occur or not.

In the case of R. V. TIRUGURWA (1943) 10 E.A.C.A 44, the accused set fire to deceased’s hut, as a result the deceased was burn to death. The body of the deceased was badly burnt but was recognized as that of KAZOMBA,a cousin of the accused. The accused had been at the deceased’s hut for some hours previously to the hut being set on fire and according to accused’s own evidence parted from deceased’s company with a man called KIFWETE, after the deceased had said “it is two days now that I have been drinking like this and I want to go to bed, if you people wish to stay and sleep you can do so, if you wish to go home you may go now”. This evidence is very important for it shows that the accused had the best reasons for believing that KAZOMBA had retired for the night. The circumstances in the case are that the accused was to some extent intoxicated.

The issue on appeal was whether the accused was intoxicated to such extent when he set fire to the hut he was incapable of forming and didn’t form an intention either to cause death or to do grievous harm.

“…If a person is found guilty to have burn the house and to have formed intention of doing so, with the knowledge  or having reasonable ground for believing that a human being is asleep within, he must be held to have burn the house with malice aforethought within the meaning of section 189 UPS (S. 200(B) TPC) in the sense that having the knowledge or grounds for believing  he must atleast take to have known that his act in burning the house will probably cause death or grievous harm, and if death results he is guilty of murder. The accused was not intoxicated enough not to be incapable of forming intention to cause death or grievous harm due to the fact that he was able to move about the countryside, able to take leave of his friend, able to return home, able to call for his pipe, his drink of banana juice and his saying to his father ‘I will burn your house if you make any trouble as I have burned that of KAZOMBA’…”

Section 200(c) TPC constructive malice

Under this part, the accused person has no intention to cause death or do grievous harm. The death was the result of intention to commit an offence e.g. abortion, robbery, rape, burglary, etc.

In SENTALI LEMENDWA V. R (1952) 20 E.A.C.A 230, the appellant was convicted of murder of a woman. The facts established that the deceased died in consequence of violence inflicted on her by the appellant in the furtherance of or in the course of committing an offence in her house (theft).

“…If death is caused by an unlawful act or omission done in furtherance of an intention to commit any offence, malice aforethought is established…”

In another case of DIENJA V. R [1973] E.A 546, a pregnant girl died as a direct result of attempted abortion by the appellant who was unqualified and inexperienced in the obtaining of abortion. The trial judge convicted the appellant of murder holding that malice aforethought was established by an intention to commit a felony:

i) Malice aforethought is not necessarily established by proof of intent to commit felony:

ii)  He who uses violent measures in committing a felony involving personal violence is guilty of murder if death results even advertently.

iii) Knowledge that the act will probably cause death or grievous harm is required before death as a result of abortion in murder-Manslaughter.

In MANAZO MANDUNDU AND ANOTHER V. R [1990] T.L.R. 92, the appellants, charged with and convicted of the offence of murder, appealed against both conviction and sentence. The trial court based its conviction on the fact that the appellants were found in possession of stolen property a few hours after the watchman of a shop was killed. And, it was established that the property was stolen from the shop which the watchman was guarding. When arrested one of the appellants asked to be pardoned and the other said matters were becoming serious and later cried at the CCM office. The incident took place at night at Majengo C area in Nachigwa, and the appellants were arrested the following day at about 10.00 AM at Chigudu village.

“…in the circumstances  it was not wrong to conclude that the appellants were also responsible for killing the deceased, and because we are satisfied that the killing was so as to effect the stealing we are of the view that it was quite proper to infer malice aforethought…”

Section 200(d)

This section refers to any person who causes death when in the process of facilitating the escape of a person who is in custody who has committed any offence or has attempted to commit any offence.

CORPUS DELICT

This means the body of the crime, the fact which constitutes an offence. If there is no direct evidence, then, circumstantial evidence can be capable of holding someone guilty.

In R. V. AMANI ZEPHANIA KIMWERI (1970) H.C.D. No. 50, the accused was charged with murder. The alleged victim had been unaccounted for and to the best of anybody’s knowledge, absent from his world for the last three years. She was seen with the accused shortly before her disappearance. There was very strong circumstantial evidence that the accused had murdered his wife but the body  was never found and he denied killing her.

“…The fact of death is probably by circumstantial evidence notwithstanding the fact that neither the body nor any trace thereof has ever been found, and that the accused has confessed to any wrongdoing…”

MANSLAUGHTER

Section 195 of the Penal Code defines manslaughter as causing death of another by an unlawful act or omission. The difference between manslaughter and murder is the absence of malice aforethought in manslaughter and presence of it in murder.

The actual killing of murder and manslaughter consists of actus reus. Manslaughter can be voluntary or involuntary.

Voluntary-consists of those homicides which would have been murder but are in fact manslaughter because the accused was either provoked or was party to the killing in pursuance of suicide pact.

Involuntary-what constitute involuntary manslaughter is not clear and it must be approached with caution e.g. negligence, recklessness etc.

If any one commits an act or omission under section 206 to 210 TPC is guilty of manslaughter. (Unlawful acts)

In the case of SINGH V. R [1962] E.A. 13, Singh was convicted for the murder of his wife. The evidence was that, after an act of sexual intercourse Singh had strangled his wife and then tried to make it appeal that she had been robbed and stabbed to death on her way to an outside toilet. Death was due to asphyxia. The defense argued that Singh killed his wife accidentally during sexual embrace and that the feigned robbery was an act of panic.

“…There was a real doubt to whether Singh intended to cause grievous harm or knew that he was causing grievous harm-Manslaughter as …”

AHIMBISIBWE  INNOCENT BENJAMIN

Award winning Entertainment Lawyer