Rex v Jezelani (Criminal Appeal No. 84 of 1947) [1947] EACA 23 (1 January 1947)

COURT OF APPEAL FOR EASTERN AFRICA

Before Sir G. GRAHAM PAUL, C. J. (Tanganyika), EDWARDS, C. J. (Uganda), and PEARSON, J. (Uganda)

REX, Respondent (Original Prosecutor) $\mathbf{v}$ .

JECK JEZELANI, Appellant (Original Accused) Criminal Appeal No. 84 of 1947

(Appeal from decision of H. M. Supreme Court of Nyasaland)

Criminal Law-Murder-Sudden provocation-Ss. 198 and 199 P. C. Nyasaland -Trial with assessors-Omissions to direct assessors regarding benefit of doubt—Omission not fatal.

The appellant married a woman who had been married to another man by purchasing her from her husband. She was unfaithful to the appellant and misconducted herself with her former husband. On the day following the discovery of her infidelity the appellant and his wife quarrelled while cutting grass in the bush and she told him that she did not want to go to his house and that she wanted Wallace, her previous husband. Whereupon the appellant killed her. He was convicted of murder and appealed.

Held. (22-4-47).—(1) Since what the appellant's wife told him was already known to him it did not constitute "sudden provocation" so as to reduce the offence to manslaughter.

(2) Though it is desirable in a trial with assessors to direct the assessors that they must give the benefit of any doubt to the accused, the omission to do so is not fatal to a conviction.

Appeal dismissed.

Appellant absent, unrepresented.

Hunter, Crown Counsel (Uganda), for the Crown.

JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.).—The only question for the Court in this appeal is whether on the evidence the conviction should be reduced from murder to manslaughter. What is founded upon as provocation to reduce the crime to manslaughter is something said by the appellant's wife to the appellant. But what she said was something already known to the appellant days before. It was not a "sudden provocation". There is no authority for the doctrine of cumulative provocation invoked by the appellant's Advocate in the Court below. There was clearly not "sudden provocation" within the meaning of Section 198 of the Penal Code.

It is said in the memorandum of appeal that the learned Chief Justice did not expressly direct the assessors that they must give the accused the benefit of any doubt. This appears to be so from the record, and the omission would, . of course, have been fatal in a jury trial where the verdict lies with the jury. Though it is desirable that in all cases the assessors should be given this direction, the omission to give it is not fatal.

Furthermore, there was no possibility of doubt as to the facts in this case, the real issue was one of law, namely whether the circumstances of the case showed provocation sufficient to reduce the crime to manslaughter.

We agree with the learned Judge's findings on fact and law and the appeal is dismissed.