031-NLR-NLR-V-51-THE-KING-v.-MARSHALL-APPUHAMY.pdf
140
The King v. Marshall Appuhamy
[Court of Criminal Appeal]
1949 Present: Wijeyewardene C.J. (President), Nagalingam J.and Gratiaen J.THE KING t MARSHALL APPUHAMY
Appeal No. 61 with Application No. 165
5. C. 28—M. C. Negombo, 58,963
Court of Criminal Appeal—Charge of murder—Provocation—Intoxication—Canaffect susceptibility to provocation—Misdirection—Penal Code, section 7$.
Whore tho accused, who was indicted for murder, pleaded that idsoffence should bo reduced from murder to culpable homicide not amount-ing to murder for the reasons that he acted on grave and sudden provo-cation and that ho was so drunk that ho was unable to form a murderousintention—
Held, that intoxication which felt short of tho degree of intoxicationcontemplated by section 78 of the Penal Code could be considered indealing with the question whether a man’s susceptibility to provocationwas affected by intoxication.
.^^.PPEAL, with application for leave to appeal, against a convictionin a trial before a Judge and Jury.
T.B. Dissanayake, for accused appellant.
It. R. Crosselte-Thambiah, K.C., Solicitor-General, with A. C. M. Ameer,Groum Counsel, for the Crown.
Cur. adv. fruit.
1 4 Ind. App- at 23.
WI.TEYEWARDENE C. J.—The King v. Marshall Appuhamy
141
December 14,1949. Wijeybwakdbne C.J.—
The appellant was found guilty of the murder of a young widow called.Elizabeth. It was not disputed that the appellant stabbed Elizabethand inflicted a number of injuries, one of which was necessarily fatal.The appellant pleaded, however, that he acted on grave and suddenprovocation and that he was so drunk that he was unable to form amurderous intention and that, for each of these reasons, his offencewas reduced from murder to culpable homicide not amounting tomurder.
I shall set out briefly the conflicting versions given by the Crownand the defence as to the circumstances in which the stabbing tookplace.
According to the Crown, the appellant, a fellow villager of Elizabeth,“ was not in the habit of coming ” to the house of Elizabeth. On Sept*ember 17, 1949, the appellant came and spoke to Elizabeth and Elizabethtold her mother that the appellant “ suggested to have intercoursewith her (Elizabeth) ”. Then both Elizabeth and her mother askedthe appellant not to come to their house in future. “ The appellantwent away saying nothing On September 19, the appellant came toElizabeth's house “ rushing in like a mad fellow as if he were possessed ”and saying, 0frcs5eoSQ (My work is all right). He stabbed
Elizabeth. The only motive suggested by Elizabeth’s mother for the actof the appellant was his displeasure at being asked on September 17not to come to her house.
On the other hand, the appellant suggested that Elizabeth usedto encourage men to visit her house for immoral purposes. He saw onSeptember 17, one Charles entering Elizabeth’s house and said, “ youhave a new man now! May I also come ? ”. Elizabeth was offendedand abused him. There was a report in the village that some stones werethrown at Elizabeth’s house tb&t night. On September 19, he left hometo visit his mother -who was living four miles away. He rode a cyclebelonging to one Arthur. He drank two bottles of toddy on his way,took a meal of hoppers at lu"s mother's and, a little later, drank a bottle of“ Yakka Ea He rode back to Arthur, returned the cycle and waswalking homewards when Elizabeth accused him of throwing stonesat her house and abused him, saying, “ Go and lie with your motherHe replied, “ I did not throw stones at your house; it must be peoplewho are in the habit of coming to your house The abuse went on fora few minutes and then Elizabeth said, “ I have never given birth toillegitimate children. It is your wife who has behaved in this manner ”.He lost his self control then and stabbed Elizabeth.
On the evidence led in the case the Jury had to consider (a) whetherthe appellant was so intoxicated as to be unable to form a murderousintention, (6) whether he was so provoked as to be deprived of his selfcontrol, (c) whether owing to some intoxication his faculties were so im-paired that he was liable to be provoked more easily than when he wassober (vide The King v. Punchi Bala1 and Letenoclc’s case *).
1 (1924) 25 N. L. R. 45S.1 (1917) 12 Criminal Appeal Reports 221.
142WIJEYEWARDBNEC.J —TheKingv. Marshall Appuhamy
On the questions of intoxication which the jury had to consider under(a) and (c) above, the only direction given by the learned Judge wasas follows :—
“ Now, Gentlemen, intoxication to be an excuse in law foran offence must be intoxication which is administered by another.In no case does intoxication which is self induced—I mean that ifa man takes drinks himself he cannot make that the occasion or excusefor an offence ; it is only when drink is administered to a man withouthis knowledge or against his wish and he commits an offence thatit is an excuse
“ Learned Counsel would have you take it that the intoxicationof this man was such as to provoke him more than a reasonable man.That state of intoxication, that amount of intoxication, is not takeninto account by the law
For intoxication to excuse a man, apart from the circumstancesI have already mentioned, it must be of such a degree as to deprivea man of any kind of intention. For instance, to be excused, a manmust be intoxicated to that degree when he docs not sec the differencebetween a human being and a log of wood
“ Now, on the evidence of the prisoner, himself, he was notintoxicated because he rode four miles, he went to his friend, he spoketo him, he returned his bicycle, he went to the boutique, lit a cigaretteand had a chat so that, in law, the fact that the accused took twobottles of toddy mid, shortly after, a third is not sufficient to excuse himof any offence, or to reduce the offence of murder to that of culpablehomicide not amounting to murder ”.
I have numbered the various paragraphs in the above passage forfacility of reference.
In paragraphs l and 3 the learned Judge appears to be dealing onlywith the provisions of section 78 of the Penal Code which enacts :—
‘ Nothing is an offence which is done by a person who, at the timeof doing it, is, by reason of intoxication, incapable of knowing thenature of the act, or that he is doing what is either wrong or contraryto law:
Provided that the thing which Intoxicated him was administeredto him without his knowledge or against his will ”.
1 do not propose to deal with that statement of the law as we arenot concerned with section 78.
In paragraph 2 the Judge appears to have expressed himself in sucha way as to give the impression to the Jury that any intoxication fallingshort of the degree of intoxication contemplated by section 78 of the PenalCode should not be considered in dealing with the question whethera man’s susceptibility to provocation was affected by intoxication.None of the above paragraphs 1 to 4 would have indicated to the Jurythat the intoxication necessary to reduce an offence from murder toculpable homicide not amounting to murder on the ground of absenceof murderous intention need not necessarily be the degree of intoxicationreferred to in section 78 of the Pena! Code (vide The King i Henganamy1).
1 {1924) 2.5 -V. L. R. 438 at page 444.
MitUin v. Babtmhamy
143
In dealing with the general plea of provocation the Judge read outto the Jury the provisions of exception 1 to section 294 of the Penal Codoand then proceeded to say—
“ Provocation must be some kind of passion as will make the personnot master of his mind. That is implicit in the words ‘ deprivedof the power of self-control He must not know what he is doing,in order to bring tho offence of murder down to the offence of culpablehomicide not amounting to murder
There is no doubt that the sentence in that passage which an ordinaryJuror would have most easily understood and remembered was “ Hemust not know what he is doing ”. That passage would have giventho Jury an incorrect view of the law.
On the question of the relevancy of good character the learned Judgeremarked:—
‘‘ That is a circumstance which you can take into account but,in this case, it is not necessary to go into that because he had admittedthe fact that he stabbed. You have to decide in what circumstancesdjfl he stab. Did he have the intention of kilting ? If he did whatare the circumstances ? ”
Tlus is a misdirection. The evidence of good character would havebeen relevant when the Jury was considering whether the act of stabbingwas or was not an unprovoked act.
In no part of the charge has the learned Judge given a direction to theJury as to the nature of the burden that rested on the defence to provethe facts necessary to support the pleas of intoxication and provocation.For these reasons we quash the conviction and order a fresh trial.
Fresh trial ordered.