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KWABENA ATTA
V.
THE QUEEN
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
10TH DAY OF JUNE, 1953
2PLR/1952/24 (WACA)
OTHER CITATION(S)
2PLR/1952/24 (WACA)
(1953) XIV WACA PP. 323 – 324
LEX (1953) – XIV WACA 323 – 324
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
WINDSOR-AUBREY, J.
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BETWEEN:
KWABENA ATTA – Appellant
AND
THE QUEEN – Respondent
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ORIGINATING COURT(S)
Appeal by a convicted person: No. 45/53
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REPRESENTATION
Mrs. E. M. Forster for Appellant
G. V. C. Young, Crown Counsel, for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Homicide – Wife and brother killing – Act of adultery witnessed by accused between wife and brother – Provocation – When will not avail – Criminal Code, sections 233(1) and 234(3) in review
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CASE SUMMARY
Section 233(1) and of the Criminal Code provides that:-
“A person who intentionally causes the death of another person by unlawful harm shall be deemed to be guilty only of manslaughter, and not of murder or attempt to murder, if any of the following matters of extenuation are proved on his behalf, namely:-
“(1) That he was deprived of the power of self-control by such extreme provocation given by the other person as is mentioned in the next succeeding section.”
Section 234(3) of the Criminal provides that:-
“The following matters may amount to extreme provocation to one person to cause the death of another person, namely:-
“(3) An act of adultery committed in the view of the accused person with or by his wife or her husband, or the crime of unnatural carnal knowledge committed in his or her view upon his or her wife, husband, or child “.
The appellant caught his wife in sexual intercourse with his brother. He and she had words and she said that in his absence from home she had the right to marry his brother; he became annoyed and took his cutlass and told his wife to lead him to the latrine, which she did; there they had more words and he killed her with the cutlass. He then returned to his room and taking his gun went to his brother’s store and asked him to come out; the brother did and after a short discussion, he shot his brother. He was charged with murdering his brother and found guilty.
In the appeal the complaint was that the Judge erred in telling the jury that the statement of the appellant “appeared to eliminate matters of extenuation”, thereby creating the impression that the killing was not done in the heat of passion.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal) that:
1. There was evidence to justify the jury in coming to the conclusion that at the time the appellant killed his brother he was not in such a state of passion as to make him no longer master of his mind; the appellant, on whom the onus lay under section 233(1) of the Criminal Code, did not show that he was in such a state at that time.
2. Circumstances which merely predispose to a violent act are not enough. It is necessary to go further and show that at the time the act was committed the person committing it was in fact deprived of the power of self-control.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
The appellant was charged with having on the 13th day of February, 1953, at Mpraeso in the Eastern Judicial Division, murdered one Kwaku Tawiah.
The case came for trial before Van Lare, J., and a jury, and the latter after a careful and detailed summing-up by the learned trial Judge brought in a unanimous verdict of guilty of murder.
The facts of the case are fully set out in the summing-up, it is therefore sufficient to say that the appellant caught his wife and the deceased, his brother, having sexual intercourse, that he called her to him and they had words about the matter during the course of which the appellant alleged that his wife said that while he, the appellant, was away from home she had the right to marry his brother. The appellant then became annoyed, took up a cutlass, and told his wife to lead him to the latrine, which she did. When they reached there they had a further discussion which ended in the appellant striking her with his cutlass and killing her. He then returned to his room, took up his gun and proceeded to his brother’s store where the latter lived. When he reached there he knocked on the door and called to his brother “to get up and come”. The brother then opened the door and stepped out on to the verandah, and after a short discussion the appellant shot at the brother, killing him.
An act of adultery committed in the view of an accused person with or by his wife is one of the matters which section 234 of the Criminal Code expressly provides may amount to extreme provocation, but the onus of proving that such provocation deprived him of the power of self-control so as to reduce the offence to manslaughter is upon an accused person: section 233(1) of the same Ordinance. Counsel for the appellant, Mrs. Forster, submitted, inter alia, that the trial Judge erred in telling the jury during the course of his summing-up that the statement given by the accused “appeared to eliminate matters of extenuation”, thereby wrongly creating the impression that the killing was not done in the heat of passion.
We are unable to agree with this contention because it is clear from the summing-up that there was no misdirection, and that the learned trial Judge put the case fully and fairly before the jury.
In view of the discussions which the appellant admitted took place, firstly with his wife, and secondly with his brother, after he had seen them in intimacy and before he used his cutlass and his gun, and in view of his evidence that he invited her to lead him to the latrine and after killing her changed his weapon and went after his brother, it seems to us that there was evidence to justify the jury in coming to the conclusion that at the time he shot at and killed his brother he was not in such a state of passion as to make him no longer master of his mind. Circumstances which merely predispose to a violent act are not enough. It is necessary to go further and show that at the time the act was committed the person committing it was in fact deprived of the power of self-control.
In the circumstances we do not think that, as a Court whose duty it is to give effect to the law and not to administer the prerogative, there is anything which would justify us in upsetting the verdict of the jury and substituting one of manslaughter. We would, however, without in any way wishing, or presuming, to dictate to the Executive as to how the prerogative of mercy should be exercised, express the hope that they may find it possible to take a course which is not open to us as a Court of law.
Appeal dismissed.
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