Cornel Samson v. R., Crim. App. 19-DSM-72, 16/6/72. Mfalila, Ag. J.

 

Cornel Samson v. R., Crim. App. 19-DSM-72, 16/6/72. Mfalila, Ag. J.

The appellant was convicted of arson and sentenced to five years imprisonment. The complainant, Aloni Mwaisela, invited his fellow villagers to help him reap his sorghum, and for the occasion he had prepared pombe for entertaining his working quests. At about 6 p .m as the quest were seated drinking their well earned pombe, the accused appeared and went straight to the kitchen where his concubine Mary Mwailula was. The accused asked her to come with him to his house, but Mary refused because the accused had not paid any dowry for her. Thereupon the accused became angry and abusive and threatened that unless Mary came with him he would either kill somebody or set the houses on fire. The accused then went away. During the same night Mwaisela’s house was set on fire and completely burnt. The accused was arrested the following morning on the basis of his earlier threat, which was the only thing connecting him with the offence.

            Held: (1) “A threat may be strong circumstantial evidence, but it cannot by itself unsupported by and other connecting evidence form the basis of a conviction. The admissibility and probative value of threats was considered by the court of Appeal in Wahi & Another vs. Uganda (1968) E.A. 270 in which the accused had been heard a month before the killing, threat ending to kill the deceased. In considering the value of this threat as evidence Spry J. a. held: “Evidence of a prior threat or of an announced intention to kill is always admissible evidence against a person accused of murder but its probative value varies greatly and may be very small or even amount to nothing. Regard must be had to the manner in which a threat is uttered, whether it was spoken bitterly or impulsively in sudden anger or jokingly and reason for the threat if given and the length of time between the threat and the killing is also material.” In the case before him Spry J. a. held that the earlier threat was of great evidential value because it corroborates d the accuseds confession, who had also been found in possession of property belonging to the deceased. It follows therefore that a threat is of the highest value when it corroborated some other evidence in order to link the accused with the offence charged. It is weakest when on its own, for

It is then reduced to mere circumstantial evidence in the form of a disconnected chain. The rules governing courts before they can act on circumstantial evidence to the detriment of the accused have been well settle in particular in the well known case of Simoni Musoke vs. R., (1950) E.A. 715 in which it was held: “In a case depending exclusively on circumstantial evidence the court must find before deciding upon conviction that the inculpatory facts were incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilty.” Further there should be no there co-existing circumstances which  would make or destroy the inference; in other words, as a learned author put it; “The circumstance must be such as to produce moral certainty, to the exclusion of any reasonable doubt.: (2) “Applying these tests to this case it is clear that the threat falls far short of these requirements. The threat appears to have been given on an impulse; there must therefore be something tangible other than the occurrence of the threatened act to indicate that the appellant did carry out his threat. The fire could have been caused by numerous other causes besides the appellant i.e. a flying spark, a malicious fellow who had heard the appellant utter the threat etc.” (3) Appeal allowed and conviction quashed.