Foster-Sutton, P. The three appellants, Isaac Quaye alias Jack Toller, Lamptey Lartey and Winfred Tettey Ansah, were charged with having on or about the 21st day of July, 1953, at Nsawam, murdered Kwaku Amaka, an old man of approximately seventy years of age.
The case came before Mark Wilson, C.J., and a jury, and after a trial which lasted nearly four weeks the latter brought in a unanimous verdict of guilty of murder against the first and third appellants and one of manslaughter against second appellant.
The whole of the material evidence was closely and critically examined before us during the hearing of this appeal by learned counsel on both sides, and it does appear to us to be necessary to discuss it again.
Mr. J. N. L. Heward-Mills, who appeared for the first appellant, Isaac Boye Quaye alias Jack Toller, submitted, inter alia, that the conviction could not be ported having regard to the evidence.
Mr. Sheridan for the Crown very fairly conceded that the case against the appellant was “weak”, but he urged that the jury were carefully warned the learned trial Judge and that there was evidence upon which they could properly convict.
There can be no doubt that there was a case of grave suspicion against him, but after a close examination of the evidence, we are left with the conviction although the learned trial Judge carefully warned the jury that the statements given to the police by the second and third appellants were not evidence against the first appellant, they, no doubt not consciously, were unable to erase their minds, in considering the case against the 'first appellant, passages contained in the statements which implicated him.
We are not concerned here with suspicion, however grave, and after careful anxious consideration we have come to the conclusion that the case against the first appellant was not prove with that certainty which is necessary in order to justify a verdict of guilty. The result is that the appeal of the first appellant is allowed and we , therefore, quash the conviction and direct a judgment and verdict of acquittal to be entered.
Mr. G. Heward-Mills, on behalf of the second appellant, Lamptey Lartey, strongly urged that the evidence did not justify the verdict of manslaughter recorded against him; he submitted that it had not been satisfactorily proved that the deceased died from unnatural causes and severely criticised the admission in evidence of exhibit “M” , a statement which the prosecution alleged had been voluntarily made by the second appellant to the police, but which he said was obtained by duress.
The question whether the deceased died by unnatural means or not was one of fact for the jury to determine. In our view there was evidence upon which the jury could properly find that the deceased man died as a result of violence, and we are satisfied that they could not have been more clearly and carefully directed on the point.
The admissibility of the statement, exhibit “M”, was carefully considered by the learned trial Judge, and we are unable to agree that it was wrongly admitted in evidence.
The jury were properly directed and there was evidence upon which they could properly convict the second appellant. In these circumstances there is nothing which would justify this Court in interfering with their verdict, and his appeal is accordingly dismissed.
Mr. Bannerman on behalf of the third appellant, Winfred Tettey Ansah, also submitted that the verdict of the jury was unreasonable and could not be sup- ported having regard to the evidence. Since, however, there was evidence, if believed, which it obviously was, that this appellant took a leading part in the proceedings which resulted in the death of the deceased, and admitted in a statement he gave to the police that he was present in the room of the deceased and was at least aiding in the commission of the crime, although not actually taking part in the assault, it cannot be said that the jury acted unreasonably in convicting him.
In our view the only question for consideration in his case is whether he was rightly convicted of murder or whether the proper verdict should have been one of manslaughter, and we think that the learned Chief Justice fairly and accurately , put the matter to the jury in paragraphs 35 and 36 of his summing-up when he said :-
“35. If on full consideration of the question as to whether it is satisfactorily proved by the evidence that the accused persons or any of them caused the death of Kwaku Amaka by inflicting unlawful harm and, after giving them the benefit of any reasonable doubt in your minds as to the facts, you come to an affirmative conclusion, it will then be necessary to consider and decide whether the killing was intentional the sense already explained to you have already told you that in cases where death has been voluntarily caused by unlawful harm and guilty intention is not proved it is possible in certain circumstances for the jury to bring in a verdict of not guilty of murder but guilty of manslaughter. There is a long series of English reported cases in which it has been held that at person who uses violent measures in tire commission of a felony involving personal violence does so at his own risk and is guilty of murder if those violent measures result, even inadvertently in the death of the victim. But in the construction of the, Criminal Code of the Gold Coast this Court is not bound by any judicial, decision or opinion on the construction of the common Law of England as to the definition of any offence or of any element of any offence (see section 7 (3) Criminal Code) an would appear that under our law if a person administers chloroform another person not for the purpose of causing his death but in an attempt to render him unconscious or insensible or physically incapable of resistance, with intent facilitate the commission of a felony such as burglary or stealing from a dwelling house (as is alleged in the present case) his offence will only be murder if, as subsection (2) of section 13 Criminal Code says, he does that act' believing that it will probably cause or contribute to cause' the death of the victim.
“36. On consideration you may well find that in this case the accused (or any of them), if you find they did in fact administer chloroform to the, deceased, did not do it for the purpose of causing his death and did not believe or realise at all that the act would cause his death or that there wasan y great risk of its, doing so. It is possible and indeed probable that an ordinary man in this country may not know that the administration of chloroform is a process which in inexpert hands is dangerous to life. If you take that view of the matter it would be open to you to bring in a verdict of manslaughter. If not, and you take the view that the accused knew the dangerous nature of the act they were doing and did it believing it would probably cause, of contribute to the death of the old man, they will be guilty of murder. This is a very important point which you must consider very, carefully before reaching your decision to whether in this case the causing of the death of the deceased by unlawful harm was intentional.”
The direction contained in paragraph 36 of summing-up is based on the provisions of section 13 (3) of the Gold Coast Criminal Code, and the effect of is to make the law here different from that in England in this respect:-
In this country, in a case like the present one, the degree of criminality depends on the knowledge and consciousness on the part of the accused that death is likely to result from what he does, that is on whether or not he willfully incurred e risk of causing the death of another person; in other words, the degree of criminal responsibility depends upon the existence or otherwise of bona fide ignorance of the connection existing between the mere mechanical act and its connsequences whereas in England anyway since the decision of the House of Lords in the case of Rex v. Beard (1) under the fiction of implied or constructive lice, if a person uses violent measures in the commission of a felony involving personal violence he does so at his own risk and is guilty of murder if those violent measures result, even inadvertently, in the death of the victim.
The jury rejected the more merciful view in the case of this appellant, probably use they felt he took a more active part in the proceedings than the second appellant, and we are not prepared to say that they erred in so doing.
The principles upon which this Court acts have been repeatedly re-stated, and may be summarised by saying, that where there is evidence on which a jury can 1t, and there has been a proper direction, this Court will not substitute its view for that of the jury. The fact that some members or all the members of the Court might think that they themselves would have returned a verdict of manslaughter is no ground for refusing to accept the verdict of (he jury, since is our duty to administer the law as we find it not the prerogative of mercy.
In these circumstances the appeal of the third appellant must also be dismissed.
Appeal of No.1 allowed; those of Nor 2 and No.3 dismissed.