The King o. K. W. Jayanhamy.
[Court of Criminal Appeal.]
1944 Present: Howard C.J., Moseley S.P.J., and Cannon J.THE KING v. K. W. JAYANHAMY et al.
4—Of. C-, Avissawella, 28,961.
Where two accused were charged with murder andthe prosecution
had toestablishthat they were actingwitha common intentionand
there was no proper direction by the learned Judge that the merepresenceof thesecond accused at thesceneof the murder didnot
constitute common intention.
Held, that the conviction of the second accused could not be sustained.
^^PPEAL against a conviction with leave of the Court.
M. M. Kumarakulasingham, for the appellants.
E. H. T. Gunasekara, C.C., for the Crown.
Gany and Hay.
October 16, 1944. Howard C.J.—
It has been submitted to us tbat the evidence led at the trial of the-first accused was generally of such an unsatisfactory nature that theconviction cannot be upheld. We do not think there is any substancein this contention and the appeal of the first accused is dismissed.
With regard to the second accused, however, different considerations-apply. It had to be established by the prosecution that the two accusedwere acting with a common intention. The evidence against the second'•accused was merely that he was with the first accused that night carrying-a club and after the shooting he was seen running away- with the firstaccused or, as the witness also put it, walking fast. There was also some-evidence of motive. Apart from this there was ncr other evidence of acommon intention between the first and the second accused. It seemsto us that the charge of the learned Judge did not make it absolutelyclear to the jury as to what had to be proved to establish a commonintention. There was no direction on the part of the learned Judge thatthe mere presence of the accused at the scene of the crime did not consti-tute common intention. Moreover, at page 20 of the charge we find thisstatement:“ Charles’s evidence brings them (that is, both accused) to-
the immediate neighbourhood and brings them both together, and bringsthem one with a club and the other with a gun. If you believe thatevidence, then they must have been acting together ”. Or in other words,the learned Judge told the Jury that if they believed the evidence of'Charles they must convict not only the first but also the second accused.In view of that statement and the other criticisms that I have made inregard to the way in which the question of common intention was dealtwith in the charge, we are of opinion that the conviction of the second,accused cannot stand. The conviction of the second accused is therefore?set aside.
Conviction of 2nd accused set aside.
THE KING v. K. W. JAYANHAMY et al