Rex v Mirandu (Cr.A. 23/1934.) [1937] EACA 107 (1 January 1937)

COURT OF APPEAL FOR EASTERN ARRICA.

Before ABRAHAMS, C. J., Ag. P. (Uganda), SIR JOSEPH SHERIDAN, C. J. (Tanganyika), and LUCIE-SMITH, Ag. C. J. (Kenya).

$REX$ (Respondent) (Original Prosecutor)

$\overline{v}$ .

RAMAZANI BIN MIRANDU (Appellant) (Original Accused). Cr. A. 23/1934.

Dying statements—Value of.

Held (21-3-34).—That too great value should not always be attached to dying statements, and they should be received with caution.

Nihill, Solicitor-General of Uganda, for Crown.

Appellant absent and unrepresented.

In the course of the judgment the following remarks were made, viz.-

This is an appeal against a conviction by Mr. Justice Hearne in the High Court of Tanganyika for murder. The case for the Crown was that the deceased, a man named Hassani bin Makusi, was proceeding at night towards his village Mazegeje. He was accompanied by a boy of twelve named Mizambwa bin Halfani. When they had reached a place called Mkuyu accused emerged from the long grass and attacked Hassani. The boy ran about a mile for assistance and several persons came to the spot and found Hasani badly injured but able to mention the accused as the person who had assaulted him. He gave no reasons for the identification (at any rate no reasons which the learned judge accepted) and he died perhaps an hour after the assault. The medical evidence disclosed severe injuries probably caused by a heavy stick.

The learned judge appears to have considered that the case for the Crown was satisfactorily made out by the dying declaration of the deceased that he was attacked by the accused corroborated by certain details given at the same time by the boy Mizamba who said that the assailant was wearing black trousers, a black shirt and a woollen cap and was carrying a hurricane lamp and a stick with a head to it. Some fragments of glass said to resemble a broken chimney of a hurricane lamp were found at the scene of the assault; the accused when arrested was wearing clothes of the above description, he had been seen by several people on the day of the crime wearing such clothes, and one of these witnesses says he was carrying a lamp at 2 p.m. that day, and two other witnesses say he was carrying a club-headed stick at 10 a.m. that day.

The accused endeavoured to set up a rather elaborate alibi. but the learned judge considered that that alibi was rebutted and in particular by the evidence of one witness named Morris. This witness lives at a place called Miombwe which he says is an hour's walk from Mkuvu where the assault took place. Mkuvu is somewhere between Miombwe and Mezegeje. Morris saw the accused on the night of the crime at Miombwe walking towards Mezegeje. The learned judge accepted Morris's evidence and we find no objection to this nor to the learned judge's opinion that the alibi broke down.

The learned judge evidently attached a greater value to the dving statement of the decased than it deserved. As this is not a matter of the credibility of a witness testifying at the trial we are in as good a position as the learned judge to estimate the value of the statement. Concerning dying declarations the following passage of Field on Evidence, Seventh Edition, is more $instructive:$

"The caution with which this kind of testimony should be received has often been commented upon. The test of cross-examination may be wholly wanted; and ... the particulars of the violence may have occurred under circumstances of confusion and surprise calculated to prevent their being accurately observed . . . The deceased may have stated his inferences from facts concerning which he may have drawn a wrong conclusion, or he may have omitted important particulars, from not having his attention called to them".

In this instance the deceased was attacked at night; the boy Mizambwa was not believed by the learned judge to have recognized the assailant although the accused was well known to him, therefore it is by no means impossible that the decased failed to recognize him but thought he did, or even may in his badly injured state have had no control over his faculties. $T_{\text{t}}$ must be remembered that he gave no reasons to anyone for identifying the accused. Nor in our opinion is the evidence of Mizambwa about the clothing of the assailant, the lamp, and the stick of sufficient cogency to amount to satisfactory corroboration. The boy's evidence in the lower court and that given at the trial differed so much as to raise doubts in our view as to whether his description of the clothes was not prompted by hearing the deceased mention the name of the accused whom he had seen that very day wearing similar clothes. Assuming however that the murderer was actually wearing such clothes and carrying a lamp and a stick it was disclosed in evidence that such a costume was not uncommon in the locality, while it seems to us that the company of a hurricane lamp and a stout stick would not be remarkable at night.

We allow the appeal and quash the conviction.

COURT OF APPEAL FOR EASTERN ARRICA

Before ABRAHAMS, C. J., Ag. P. (Uganda), SIR JOSEPH SHERIDAN, C. J. (Tanganyika), and LUCIE-SMITH, Ag. C. J. (Kenya).

$REX$ (Respondent) (Original Prosecutor)

JUMA MAYENGA (Appellant) (Original Accused). Cr. A. 29/1934.

Uganda Cr. Pro. Code secs. 332 and 18-Special District Court—Criminal Revision—Right of Appeal to Court of Appeal from order of High Court on revision.

Held (12-3-34).—That there is a right of Appeal to the Court of Appeal for Eastern Africa only in cases where a death sentence has been<br>confirmed by the High Court but that in no other case is there a right of appeal to the Court of Appeal from an order of the High Court exercising its powers in revision on a sentence passed by a Special District Court.

Griffin. Crown Counsel. for Crown.

Annellant absent and unrepresented.

JUDGMENT.—This court has no jurisdiction to hear these appeals. Under section 18 of the Criminal Procedure Code there is a right of appeal to this court only where a sentence of death has been confirmed by the High Court. This has of course not occurred, since the High Court altered the finding to manslaughter and the death sentence to one of imprisonment. Nor have the convicts any right of appeal to this court against the finding in revision of the High Court, since the circumstances do not fall within the conditions of section 332 of the Criminal Procedure Code. It may be that they can still appeal to the High Court, but it is not necessary for us to give any ruling in that respect.

We dismiss the appeals.