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R. v. MOSHIE


  • appeal
  • 1959-10-05
  • COURT OF APPEAL
  • GLR 343-347
  • Print

VAN LARE J.A. AS C.J., GRANVILLE SHARP J.A. AND OLLENNU J.


Summary

Homicide?-Accused runs amok?-Living in a world of his own?-Proper interpretation of sec. 52(2) of the Criminal Code?-Guilty but insane.

Headnotes

On the morning of the 23rd December, 1958, for no reason which could be suggested, Issaka Moshie ran amok. He killed his landlord, chased other people in the village and wounded a woman. Finally he caught a little boy aged about six years (Kwadwo Anthony), and was holding him with his left hand, bending over him and cutting him up with a cutlass wielded by his right hand, when one of the villagers who had been attracted to the scene by the alarms of women, shouted at the appellant saying: "Is that a human being you are cutting up like this?" Issaka Moshie looked up at the man for a moment, then rushed on him with the cutlass. The man ran into his room, took up his gun, and came out. Issaka Moshie was still coming towards him, holding the cutlass in a fierce manner. The man then pointed the gun at Moshie, threatening to shoot him, hoping that the threat would make him stop, and drop his cutlass. Moshie was not in any way deterred, but pressed forward. The witness then shot him in the knee; Moshie fell but got up again and rushed towards the witness with the cutlass. The witness fired a second shot, which disabled Moshie, and caused him to fall again. The Odikro of the village, who had arrived at the place by that time, seized the cutlass from Moshie, and the matter was then reported to the Police.When charged with murder, and cautioned by the Police, Moshie made a statement admitting killing some person or persons, and giving reasons for it. He said that two days before the incident his landlord had come from Kumasi with a number of people, to take him to the Asantehene to be killed. One of the men had fired a gun at him but had missed him, so he went into his room and slept. On the day in question a Linguist and a large number of people came on a lorry; he was alone in his room at the time. The Linguist, his landlord, and those other people dragged him out of the room, and were forcing him into the vehicle to be taken to the Asantehene to be killed. Some of the men, including his landlord, had guns pointed at him, and were threatening to shoot him if he would not get on the vehicle. He concluded by saying that, in that grave moment, he snatched his cutlass and slashed his way through his assailants in order to save his life. He told the same story on oath at his trial in greater detail.Issaka Moshie was charged with the murder of the child. He was tried at Sunyani by Scott J., sitting with assessors, and was convicted on the 23rd June, 1959. He appealed to the Court of Appeal (Crim. App. No. 95/1959).

Judgement

JUDGMENT OF OLLENNU J.

(After stating the facts his lordship proceeded:-)

In our view, the evidence given at the trial of the appellant raised the question whether or not, when he committed the act which he admits he committed, he was under an insane delusion as defined in section 52, sub-section 2 of the Criminal Code, so as, in the opinion of the Court, to render him an unfit subject for punishment.

The story consistently told by the appellant does not fit into the known facts; for example, apart from his landlord, and some of the people who arrived on the scene in consequence of the alarm, the people whom the appellant attacked were only women and children, while according to the appellant the people were all men, grown-ups; he never saw a child anywhere near. The story is such that the only impression it gives is that at the moment when he did the act he was living in a world entirely his own and quite different from that in which all other people in the village, who witnessed the scene, were living. [p.345]

In the notes of the learned Judge's summing-up to the assessors appears the following passage:

"Assessors told if they did not believe that accused had acted in self-defence, but that he was deprived of his power of self-control, and that he intended to cause harm to landlord and other persons in group, and not to deceased boy Kwadwo Anthony, entitled to find accused not guilty of murder but guilty of manslaughter."

This direction would have been in order, if the story told by the appellant could be set against a background of reality. But the evidence shows clearly that the "facts" in the story of the appellant were facts which existed only in his own mind, false beliefs held by him which could not be shaken by the facts as they were.

Another passage in the notes of the summing-up is the following:-

"Assessors told no need for prosecution to prove motive - No reasons adduced for actions of accused but if evidence of prosecution believed particularly eye-witness P.W.4 - and that accused was not held in an attempt to take him to lorry for the purpose described by accused, opinion should be stated as guilty of Murder."

And in his judgment the learned Judge said: -

"After I had summed up, the assessors unanimously stated that in their opinion the accused was guilty of murder. With this opinion I am in entire agreement as I accept the evidence of the prosecution and do not believe that the accused was threatened and assaulted as he alleged before he slashed Kwadwo Anthony to death with a cutlass."

In his summing-up to the assessors, and in his judgment, the learned Judge completely overlooked a most important fact which stares one in the face - the fact that the appellant was not seeing the things that every one else saw, and that he firmly believed (in spite of what every one else said) that what he was saying was the truth. The learned Judge, therefore, failed to direct himself and the assessors on the question of the state of mind of the appellant at the time when he committed the act, in order to determine whether or not he was a fit subject for punishment in respect of the act.

It appears to us that the learned Judge was led into this error by reason of the fact that a defence of insanity or of insane delusion was not put up. "Guilty but insane" is not a plea open to an accused person. It is a "special verdict" based upon facts which a jury or Judge can find upon the whole of the evidence, whether that evidence was led by the prosecution, or by the defence, or by both. If the [p.346] defence wishes to plead "Guilty but insane" it may be so indicated, in which event a plea of "not guilty" is entered, and the state of mind of the accused at the time of the act done by him becomes the only issue. That principle emerges from section 137 (1) of the Criminal Procedure Code, which says:

"Where any act or omission is charged against any person as an offence and it is given in evidence on the trial of such person for that offence that he was insane so as not to be responsible according to section 52 or 53 of the Criminal Code for his action at the time when the act was done or omission made, then, if it appears to the Court before which such person is tried or, in the case of a trial by jury if it appears to the jury that he did the act or made the omission charged but was insane as aforesaid at the time when he did or made the same, the Court or jury as the case may be shall return a special finding to the effect that the accused was guilty of the act or omission charged but was insane. as aforesaid when he did the act or made the omission."

In the case of R. v. Grumah (2 W.A.L.R. 255), the West African Court of Appeal held that for the purposes of section 52 (2) of the Criminal Code an insane delusion is a state of mind (induced by mental disease) in which a false belief is held that cannot be shaken by facts. That decision was followed by this Court in the case of R. v. Ayaaba Kusasi. In the judgment delivered in that case on the 28th March, 1958, their Lordships not only cited the case of R. v. Grumah, but also indicated their approval of the rationes decidendi drawn therefrom by the learned Editor of that judgment, namely, that section 52 (2) of the Criminal Code is concerned principally with whether or not the insanity is of such a nature as to render punishment pointless; it is not concerned with the form the delusion takes. We are of opinion that that is a proper interpretation of section 52 (2), and we so declare it.

The facts of this case are very similar in material respects to those in the case of R. v. Ayaaba Kusasi. We are of the opinion that had the learned Judge directed himself and the assessors on this issue of insane delusion, the opinion of the assessors might well have been different, and the learned Judge might well have found himself in entire agreement with that other opinion, as he was with their opinion of guilty of murder.

Upon a careful consideration of the whole evidence, and the circumstances of the case, we have come to the conclusion that the verdict of guilty of murder cannot stand. We therefore set aside that verdict, and quash the sentence of death, substituting the special [p.347] verdict under section 173 of the Criminal Procedure Code. We find that the appellant was guilty of the act charged, but was insane at the time he did the act.

Decision

<P>It is ordered that the appellant be detained in custody at the Mental Hospital at Accra until the Governor-General's pleasure shall be known.</P>

Plaintiff / Appellant

Defendant / Respondent

Referals

1) R. v. Grumah (2 W.A.L.R. 255);

(2) R. v. Ayaaba Kusasi (unreported; Court of Appeal, 28th March, 1958).

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