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IDDI DAGOMBA v. THE STATE


  • appeal
  • 1961-02-17
  • SUPREME COURT
  • GLR 100-103
  • Print

VAN LARE, SARKODEE-ADOO AND AKIWUMI, JJ.S.C.


Summary

HomicideProvocationWhether accused had time to cool downWhether deprived of power of self-controlCriminal Code, Cap. 9 (1951 Rev.) ss. 251.252.

Headnotes

The appellant was convicted of murder and sentenced to death by Apaloo, J. sitting with assessors in the High Court, Kumasi on the 7th November, 1960. It was not disputed that there had been an altercation between the appellant and the deceased, during which the appellant was pushed and fell down. It was also not disputed that the appellant killed the deceased with a long butcher's knife a short time after that altercation. Evidence was given that during the intervening period the appellant, who admitted that he had been drinking went away, probably to his house, to fetch his knife, that he then lay in wait for the deceased and killed him. This evidence was accepted by the trial judge. Two assessors found the accused guilty of murder and one of manslaughter.In his application for leave to appeal against conviction the appellant listed the following grounds:(1) his story that the deceased brutally assaulted him on two occasions was disbelieved by the trial judge;(2) he did not go home for his butcher's knife but had it on him at all material times;(3) the principal prosecution witnesses were related to the deceased and therefore biased, and (4) the trial judge misdirected himself and the conviction is unreasonable and cannot be supported having regard to the evidence.

Judgement

APPEAL against conviction for murder by Apaloo, J. sitting with the aid of assessors in the High Court, Kumasi, on the 7th November, 1960.

JUDGMENT OF VAN LARE J.S.C.

van Lare, J.S.C. delivered the Judgment of the court. We are of the opinion that in this appeal the learned trial judge did not adequately consider the question of matters of extreme provocation to which the prosecution witnesses have testified. The learned judge disbelieving the story of the appellant that he had the weapon on him at the time of the violent assault and battery committed on him by the deceased, failed to consider adequately the question of the effect of provocation on the prisoner when, as he found, the prisoner went to his house and fetched the knife. The judge has omitted to find that the prisoner had cooled down or that at the time the prisoner fetched the knife from his house he had murderous intent.

We think, however, that on the evidence as a whole the prisoner might have been still labouring under the violent and extreme provocation caused him by the deceased and that when he went out to attack the deceased, he was still deprived of the power of self-control. We think that had the learned trial judge considered the point now raised, he would have found the appellant not guilty of murder but guilty of manslaughter only.

In the result the appeal is allowed. The verdict of guilty of murder entered at the trial is set aside and one of guilty of manslaughter is substituted therefor. The appellant is sentenced to five years I.H.L.

Decision

<P>Appeal allowed. </P> <P>Conviction for manslaughter substituted.</P>

Plaintiff / Appellant

B. K. Tamakloe

Defendant / Respondent

K. Dua Sakyi

Referals

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