Rex v Singine (Criminal Appeal No. 63/1935.) [1935] EACA 120 (1 January 1935)

COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Kenya); HALL, C. J. (Uganda) and Law, C. J. (Zanzibar).

REX, Respondent (Original Prosecutor)

$\overline{v}$ .

JEREMIAH SINGINE, Appellant (Original Accused). Criminal Appeal No. 63/1935.

Criminal Law—Homicide—Killing in fight following immediately upon quarrel—Fight upon equal terms—Manslaughter.

The accused and the deceased quarrelled and fought; both had spears, which, however, they dropped; in their struggle they both fell into a river and eventually the accused had the better of the deceased and held him down until he was dead.

Held (17-7-35).—That, as the parties fought immediately upon their quarrel and without weapons, neither taking an unfair advantage of the other, the offence was manslaughter and not murder. (Decision of the High Court of Nyasaland reversed.)

Appellant absent and unrepresented.

Lewey, Crown Counsel, for the Crown.

JUDGMENT.—The question in this case is whether the appellant should have been convicted of murder or manslaughter. The material for the conisderation of that question is to be found in the account of the quarrel between the appellant and the deceased given at the trial by the former. The deceased, as the person responsible for the collection of the dowry in connection with the marriage of the appellant's sister to one Yesaki, was blamed by the appellant for not having collected it and accused of slackness. The appellant and a friend Simon had set out for Yesaki's to interview him about the dowry, baving failed to persuade the deceased to accompany them. On arrival at Yesaki's they found him absent and retraced their footsteps. On the return journey they met the deceased who had set off for Yesaki's after them. What happened is related by the appellant in the following words: "We all three then started back, and I continued to ask about my dowry, saying that Matatiyo had been most slack in obtaining payment. $\mathbf{H}\mathbf{e}$ replied saying 'if you consider me slack, do you mean that I should pay up myself'. Then we started to quarrel over the dowry and words became more and more heated and tempers rose. By this time, we had reached the edge of the stream Kayezi, and we started to fight. I caught hold of Matatiyo by

the hand to swing him round to face me. Then Simon asked me what I thought I was doing, and Simon ran off leaving us. He was afraid. Matatiyo and I struggled, and we went into the water fighting. Matatiyo caught hold of my spears, which I had in my hand, and cast them into the stream. He also let his own spears go into the water. We were thus unarmed as we struggled together. We struggled and I forced Matatiyo down into the water. At times he was on top, at times I was on top. I swallowed a lot of water and so did he. At last his strength began to give out and I had the better of him and held him down until he was dead." This is the account of what happened —and to our mind a credible account which must be accepted. It is the only account. The parties fought on equal terms and though both drew their spears at first, all through the fight they fought without weapons and neither took an unfair advantage of the other. The following passage in Archbold, 28th Ed. 894, is appropriate on the evidence we have stated: "If two persons quarrel and afterwards fight and one of them kills the otherin such a case, if there intervene between the quarrel and the fight, a sufficient cooling time for passion to subside and reason to interpose, the killing will be murder; but if such time had not intervened-if the parties in their passion, fought immediately, or even if, immediately upon the

quarrel, they went out and fought in a field (for this is deemed a continued act of passion), the killing in such a case would be manslaughter only." In the case before us the quarrel and fight may be regarded as one continued act of passion and the facts are in our view more consonant with the crime of manslaughter than murder. We alter the conviction accordingly, find the appellant guilty of manslaughter and sentence him to twenty months' hard labour.