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CHUTUWA
V.
THE QUEEN
THE WEST AFRICAN COURT OF APPEAL, NIGERIA HOLDEN AT LAGOS
22ND DAY OF OCTOBER, 1954
2PLR/1954/45 (WACA)
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OTHER CITATION(S)
2PLR/1954/45 (WACA)
(1954) XIV WACA PP. 590 – 592
LEX (1954) – XIV WACA 590 – 592
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BEFORE THEIR LORDSHIPS:
FOSTER-SUITON, P.
DE COMARMOND, AG. C.J. NIGERIA
COUSSEY, J.A.
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BETWEEN:
CHUTUWA – Appellant
AND
THE QUEEN – Respondent
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ORIGINATING COURT(S)
Appeal by convicted person: No. 159/1954 from judgment of Bennett, J., sitting at Yola in the Jos Judicial Division
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REPRESENTATION
David — for Appellant
Fatayi Williams, Crown Counsel — for the Crown
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE – PROOF OF CRIME:- Murder-Intoxication – Provocation – Criminal Code, section 29(4), section 318
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CASE SUMMARY
Section 29(1), (2), and (4) of the Criminal Code provides as follows:-
“29(1) Save as provided in this section, intoxication shall not constitute a defence to any criminal charge.
“(2) Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and:-
“(a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or
“(b) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.”
(3) (is not relevant.)
(4) Intoxication shall be taken into account for the purpose of deter mining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.”
(5) (is not relevant.)
The night before, the appellant suspected his wife of adultery, but peace was restored next morning and drinking began. About noon he went out to water his horse and came back and, finding his wife packing, stabbed her. His story was that she was throwing his things about and some of them at him, and then he knifed her, after which he went to the village and reported the occurrence. His defence was that he was so drunk he did not know what he was doing. The trial Judge held that section 29(2) did not apply: he had been drunk but not without his consent, and he did not prove he had been insane at the time by reason of intoxication. He appealed from the conviction of murder.
It was submitted that section 318 (on provocation) should be considered with section 29(4) (on intoxication negativing intent).
DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing theAppeal) that:
It is only where a person is so drunk as to be incapable of forming the intent essential to the crime charged that section 29(4) of the Code may be relied upon; if short of that, drunkenness which may lead a person to attack another in. a manner in which no reasonable man would do cannot assist to reduce murder to manslaughter under section 318 of the Code. Here the facts did not bring the case either within section 29(4) or within section 318 of the Code, and the conviction was right.
Case followed:-
(1) Rex v. McCarthy, 1954, 2 W.L.R. 1044.
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MAIN JUDGMENT
The following judgment was delivered:
DE COMARMOND, AG. C. J.
The appellant was found guilty of murder by Bennett, J., sitting at Yola in the Jos Judicial Division. He has appealed against the conviction on the ground that although he did kill his wife, he did so while he was not responsible for his actions because he had been drinking beer “for one whole day and one whole night”.
Mr. David was assigned to argue the appellant’s case and Mr. Fatayi Williams appeared for the Crown.
The main facts of the case are not disputed.
The appellant had two wives: Zara and Dawula. In December, 1953, he was away from home for three days. He returned at night time and visited his two wives. In Dawula’s sleeping hut he noticed a hole in the wall. He questioned Dawula and summoned the neighbours. The latter advised him to keep cool but he picked up a spear. The neighbours snatched it away from him and Dawula ran away and spent the night at a neighbour’s house.
The next morning Dawula returned home; the village head intervened, Dawula offered to take an oath that no man had entered her sleeping hut, but the appellant did not want her to take an oath. Apparently, peace was restored, and a beer drinking party began.
After the neighbours had left, the appellant and his two wives continued drinking. At about noon (or 2 p.m. according to the appellant) the appellant went to water his horse. When he came back he saw his wife Dawula packing up her belongings. According to Zara, the appellant asked Dawula for his own belongings; she handed them to him and he stabbed her in the stomach. According to the appellant, he asked Dawula why she was packing up her belongings and she then started picking up his own belongings and throwing them about. The appellant’s story, as told at the trial, is that he put his own belongings away and when he came back Dawula threw some of his belongings at him. It was then, according to his story, that he knifed her.
There was only one blow which ripped open the woman’s abdomen so that her intestines bulged out through the wound which was eight inches long. The victim was taken to the dispensary and died soon after admission.
After wounding his wife, the accused went to the village head and reported the occurrence.
The appellant made a statement at the preliminary inquiry and gave evidence at his trial.
On both occasions he explained what had happened, and there is therefore no doubt that he remembered what he had done.
In his statement before the Magistrate, the accused said that drink had made him lose his senses, otherwise he would not have killed his wife but would have called neighbours to prevail upon her not to run away.
At the trial he stated that he had never been so drunk in his life and did not know what he was doing.
The learned trial Judge accepted that the accused (now the appellant) was in a state of intoxication after having had a great deal to drink, but he also held that section 29(2) of the Criminal Code was not applicable because the state of intoxication had not been brought about without the consent of the accused, and because the accused had not proved that he was insane at the material time by reason of intoxication.
We are of opinion that these findings were fully justified.
Mr. David submitted that the trial Judge had failed to take into account the effect of provocation.
This submission is not quite correct. The trial Judge did state that the defence of provocation, based on the supposed adultery, had been adumbrated in cross examination by the defence but had then apparently been abandoned. The learned Judge added that there was no evidence to support a plea of provocation. Had Mr. David relied on section 318 of the Criminal Code Ordinance only, he would not have submitted that the fact of a wife packing up her belongings to leave her husband constituted such provocation as to reduce murder to manslaughter. Even if one takes in consideration the possibility that the appellant harboured a suspicion that his wife had committed adultery section 318 would not be applicable because the suspicion arose the night before the crime and was therefore not sudden.
What Mr. David did, in effect, submit, was that section 318 of the Criminal Code Ordinance, which deals with provocation in cases of alleged murder, should be considered together with section 29(4) of the same Ordinance, which reads as follows:-
“(4) Intoxication shall be taken into account for the purposes of determining whether the person charged had formed any intention specific or otherwise, in the absence of which he would not be guilty of the offence.”
Mr. David’s submission is an attractive one at first sight, but we do not consider that it is correct. Section 29(4) may be relied upon by an accused person if it is established that he was so drunk as to be incapable of forming the intent which is essential to constitute the crime charged. But evidence of drunkenness which falls short of this and which merely establishes that, owing to his state of intoxication, the accused would more readily give way to some violent passion cannot be relied upon by the accused in so far as provocation is concerned. In this connection, we respectfully adopt the views expressed by the Court of Criminal Appeal in England in the case of Rex v. McCarthy (1) where it was laid down that apart from a man being in such a complete and absolute state of intoxication as to make him incapable of forming the intent charged. drunkenness which may lead a man to attack another in a manner in which no reasonable man would do, cannot assist to make out a defence of provocation and cannot be pleaded as an excuse reducing the crime from murder to manslaughter (see Rex v. McCarthy (1)).
In the present case the learned trial Judge was of opinion that the actions of the accused before, during and after he knifed his wife did not indicate that he was incapable of forming the intent to do her grievous harm. We consider that this finding was justified.
We have already indicated that the facts of this case apart from the question of drunkenness do not amount to such provocation as is described in section 318 of the Criminal Code Ordinance. In view of the fact that the appellant was capable of forming the intent to do grievous harm, he cannot rely on his state of intoxication to magnify the degree of provocation which falls far short of what is required by section 318.
The learned trial Judge was impressed by the feelings of remorse shown by the appellant. We have no reason to doubt that they were genuine but this is not a matter that can influence the decision on this appeal. The appeal is dismissed.
Appeal dismissed.
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