R. v. Magoma Crim. Sass 169 – Musome – 70, 14/9/70; Mnzavas, Ag. J.

 R. v. Magoma Crim. Sass 169 – Musome – 70, 14/9/70; Mnzavas, Ag. J.

The accused was charged with murder c/s 196 of the Penal Code.  One the material date Saba-Saba 1969, a number of persons visited the accused’s house where he had they partook of a great deal of “moshi” which the accused was selling. Prosecution witnesses testified that by early afternoon the accused was talkative, incoherent and staggering. The accused started quarreling with his wife and assaulted her. The deceased intervened to prevent the quarrel from taking a more serious turn. The deceased later asked the accused to give him some “moshi” on credit. The accused did not reply but went behind his house and re appeared carrying hoe with which he hit the deceased on the head inflicting a wound which caused the death of the deceased.

Held: (1) “Although the burden of proving insanity as result of intoxication is on the accused, the burden is not on him to prove that due to intoxication he was incapable of forming the specific intent requiring e. g. to kill or cause grievous harm necessary to prove malice after thought in a case of murder. The burden of proof in this case is always on the prosecution …….. Nowhere in the prosecution case has it been shown or even suggested that the circumstances where such that accused would not have been so drunk as to be unable to form intention to kill or cause grievous harm……………” (2) There I consider that the accused did unlawful cause the death of the deceased but that at the time he inflicted the blow his mental faculties were, by reason of drunk, so twisted and prisoner that he could not form the intention to kill or cause grievous harm to the deceased. The accused is acquitted of the charge of murder but is found guilty of the manslaughter of the deceased.