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REX
V.
HARRY AND OTHERS
WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS
24TH DAY OF FEBRUARY, 1938
2PLR/1938/55 (WACA)
OTHER CITATION(S)
2PLR/1938/55 (WACA)
(1938) IV WACA PP. 37 – 38
LEX (1938) – IV WACA PP. 37-38
BEFORE THEIR LORDSHIPS
DONALD KINGDON, C.J., NIGERIA
BUTLER LLOYD, J.
CAREY, J.
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BETWEEN:
REX — Respondent.
AND
HARRY, ADINDU EWUNONU AND AZOJI — Appellants
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ORIGINATING COURT(S)
APPEAL FROM CONVICTION BY HIGH COURT
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REPRESENTATION
C. N. S. Pollard — for Crown
Appellants not present
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE – PROOF OF CRIME:- Murder contrary to Section 319 Criminal Code – “Dying Declaration” under Section 51 Criminal Procedure Ordinance – Where declared inadmissible by Court and remaining evidence insufficient to warrant convictions – Legal effect
CHILDREN AND WOMEN LAW:- Children and justice administration — Murder of a child — Statements made by boy to his nurse in a moment of lucidity following periods of delirium — Whether amounts to admissible dying declaration
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
1. The so-called dying declaration of the deceased buy was made during a sudden and short period of lucidity occurring in a longer period of delirium. It was made to a nurse and definitely laid the act at the door of all the appellants. The test to be applied is whether or not the boy “believes himself to be in danger of approaching death” at the time of the declaration pursuant to section 51 of the Criminal Procedure Ordinance.
2. It is not sufficient that the boy might have believed it if he had had time for reflection but that in fact he did believe it. There is no evidence to show that he believed it and it cannot be presumed. The so-called dying declaration was therefore wrongly admitted in evidence.
3. Whereas the only eye-witness to the actual wounding of the boy speaks of seeing the appellants “by the moonlight coming through the back door” saying “it was a light night a bright moon,” and other witnesses speak of it as a moonlight night and the Judge finds it to have been a “bright night,” the calendar shows that in fact the moon was only four days old on the night in question, and so cannot have given very much light.
Appeal allowed.
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MAIN JUDGMENT
The following joint judgment was delivered:
KINGDON, C.J., NIGERIA, BUTLER LLOYD AND CAREY, JJ.
In this case the four appellants were convicted of the murder of a boy named Unaeze, the allegation being that they went at right to the room where he was sleeping and there the first appellant inflicted on the boy wounds with a matchet from which death eventually resulted after gangrene had set in; the other three appellants aided and abetted the act.
In the course of the case, the trial Judge admitted a so-called dying declaration of the deceased. This was made during a sudden and short period of lucidity occurring in a longer period of delirium. It was made to a nurse and definitely laid the act at the door of all the appellants. We have to consider whether this evidence was properly admitted and the test to be applied is whether or not this boy “believes himself to be in danger of approaching death” at the time of the declaration. (See section 51 of the Criminal Procedure Ordinance).
It is clear from the authorities that it is not sufficient that the boy might have believed it if he had had time for reflection but that in fact he did believe it. We think that it is clear from the facts of this case that the boy, coming to sudden lucidity in the midst of delirium, cannot have had time to consider and reflect that he was dying. There is no evidence to show that he believed it and it cannot be presumed. In this respect the case is similar to that of R. V. Bedingfield, 14 Cox Criminal Cases 341.
In our opinion the so-called dying declaration was wrongly admitted in evidence.
Having come to this conclusion we have to consider what effect it has on the case.
The learned trial Judge says that “even in the absence of the dying declaration I should come to the same conclusion.”
We have to consider whether the evidence justifies this. The defence is that the whole case is a conspiracy, and before us the learned counsel for the Crown, very properly drawing attention to anything that can be said on appellants’ behalf, has pointed out that the trial Judge missed a very important point in the evidence. It is that whereas the only eye-witness to the actual wounding speaks of seeing the appellants “by the moonlight coming through the back door” saying “it was a light night a bright moon,” and other witnesses speak of it as a moonlight night and the Judge finds it to have been a “bright night,” the calendar shows that in fact the moon was only four days old on the night in question, and so cannot have given very much light.
Not only does this throw serious doubt on the veracity of the witnesses, but it also affords very strong corroboration of the appellants’ story of a conspiracy against them.
This being so we feel unable to say that, had the inadmissible declaration been rejected and had the Judge also appreciated the implications of the evidence as to the moonlight, he would inevitably have come to the conclusion which he did.
We therefore find ourselves unable to uphold the convictions.
The appeals are allowed, the convictions and sentences upon all the appellants are quashed and it is directed that in each case a judgment and verdict of acquittal be entered. The appellants are discharged.