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REX
V.
MAMA TIMBUKTU
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
25TH DAY OF MARCH, 1937
2PLR/1937/41 (WACA)
OTHER CITATION(S)
2PLR/1937/41 (WACA)
(1937) III WACA P. 164
LEX (1937) – III WACA P. 164
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
WEBBER, C.J., SIERRA LEONE
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BETWEEN:
REX — Respondent
AND
MAMA TIMBUKTU — Appellant
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Conviction for murder – Question of reduction to manslaughter withdrawn from jury – Proper treatment of
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ORIGINATING COURT(S)
APPEAL FROM CONVICTION IN SUPREME COURT.
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REPRESENTATION
K. A. Korsah — for Appellant
T. A. Brown — for Crown
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (Appeal allowed):
(1) The trial judge was wrong in withdrawing from the jury the question of the case being one possibly of manslaughter.
(2) The question should have been left to the jury whether there were not such circumstances aggravating the assault upon appellant as would reduce the crime from murder to manslaughter.
(3) The proper verdict would have been one of manslaughter, and acting under the special power of the Court given by section 11(2) of the West African Court of Appeal Ordinance, the verdict found by the jury is substituted with a verdict of guilty of manslaughter.
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MAIN JUDGMENT
The following joint judgment was delivered:- KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND WEBBER, C.J., SIERRA LEONE.
In this case the appellant was convicted at the Assizes at Cape Coast of the murder of one Akwesi. In his summing up to the jury the learned Judge directed them that there was no ground for reducing the offence to manslaughter, though he left to them the question of whether the case might be one of justifiable homicide.
In withdrawing from the jury the question of the case being one possibly of manslaughter, we think that the trial Judge was wrong. The circumstances were that the deceased was assisting a native Tribunal policeman to effect the unlawful arrest of the appellant at a time when appellant had good reason to fear that he might be seized and carried off as a sacrifice.
The question should have been left to the jury whether there were not such circumstances aggravating the assault upon appellant as would reduce the crime from murder to manslaughter. If that question had been so left to the jury, it is possible, if not probable, that they would have returned a verdict of manslaughter instead of murder; whilst on their verdict it is certain that they would have found one or the other.
Our own view is that the proper verdict would have been one of manslaughter. For these reasons, and acting under the special power of the Court given by section 11(2) of the West African Court of Appeal Ordinance, we substitute for the verdict found by the jury a verdict of guilty of manslaughter and sentence the appellant to imprisonment with hard labour for three years to date from the 24th February, 1937.
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